The Needless Detention of Immigrants in the United States by umesh198999


									T A B L E                                            O F                        C O N T E N T S


A.     Vulnerable Groups Unnecessarily in Detention ........................................................................................3

A1. Detention of People Fleeing Persecution ..................................................................................................3

A2. Protecting the Most Vulnerable: Detention of Women and Children ........................................................18

B.    Indefinite, Mandatory and Secret Evidence Detainees ..............................................................................24

B1. Indefinite Detainees ..................................................................................................................................24

B2. Mandatory Detention ..............................................................................................................................28

B3. Detention Based on Secret Evidence ........................................................................................................31

C.     Conclusion ..............................................................................................................................................32

Glossary of Terms ............................................................................................................................................39

         REPORT                 4       ❘      THE NEEDLESS DETENTION OF IMMIGRANTS                                                                                  i
      A C K N O W L E D G M E N T S

     “T          he Needless Detention of Immigrants in
                 the United States” is the fourth in a series
                 of reports produced by the Catholic Legal
     Immigration Network, Inc. (CLINIC) on “at-risk”
                                                                 Shirley Tang, Friedman & Siegelbaum;
                                                                 Sue Weishar and Kathleen Harrison, Catholic Charities
                                                                 of New Orleans;
     immigrants. The series attempts to put a human face         Wendy Young, Womens’ Commission for Refugee
     on the difficulties faced by discrete populations of        Women and Children.
     immigrants in the United States. Past reports in this
                                                                 This series would not have been possible without the
     series have covered immigrant families, naturalization,
                                                                 financial support of the Ford Foundation, the
     and low-wage laborers.
                                                                 Foundation for Child Development, Faye and Sandor
     CLINIC, a subsidiary of the U.S. Catholic Conference,       Strauss, and the Rosenberg Foundation. This report
     provides legal support services to a network of 121         was also made possible (in part) by a grant from the
     local Catholic immigration programs. CLINIC also            Carnegie Corporation of New York. Finally, CLINIC
     operates national legal service projects for “at-risk”      could not have taken on this project without the
     newcomers, including a six site program for immi-           support and collaboration of its sister agency, the
     grants in the “administrative” custody of the               Migration and Refugee Services division of the U.S.
     Immigration and Naturalization Service (INS). CLINIC        Catholic Conference. Of course, the statements made
     is one of the three founding agencies of the Detention      in the report and the views expressed are solely
     Watch Network, an affiliation of more than 100              CLINIC’s responsibility.
     agencies that provide legal, pastoral, and social
                                                                 CLINIC appreciates the many contributions it received
     services to INS detainees.
                                                                 in putting together this report. It hopes that the final
     Since its inception in April 1999, this project has been    product contributes, in part, to comprehensive reform
     a collaborative one. CLINIC paralegal Molly McKenna         of the INS detention system.
     has brilliantly staffed the project; she has collected
     many of the case studies and done much of the
     research for this report. Donald Kerwin, CLINIC’s
     Chief Operating Officer, wrote significant sections of
     this report and pulled its various pieces into a cohesive
     whole. Other significant contributors include Mark
     von Sternberg, Juan Osuna, Mary McClenahan, Alicia
     Triche, Helen Morris, and Tom Shea. Charles Wheeler
     and Juan Osuna helped edit various versions of the
     report. CLINIC’s detention attorneys provided most
     of the report’s case studies. They are Denise Baez,
     Mary Howells, Mary McClenahan, Tom Shea, Jill
     Sheldon, Alicia Triche, Ferdinand Ubozoh, and Allison
     Wannamaker. The following people also provided
     case studies and key information:
     David Cole, Georgetown University Law Center;
     Chris Einolf, Lutheran Social Services of the National
     Capitol Area;
     Madeline Ellis, Morgan, Lewis & Bockius LLP;
     Regis Fernandez, Reitman & Parsonnet;
     Mark Messenbaugh, Davis, Polk & Wardwell;
     Sr. Marlene Perrotte, Las Americas Refugee Asylum

 T H E            N E E D L E S S D E T E N T I O N
                O F I M M I G R A N T S I N
               T H E U N I T E D S T A T E S :
Why Are We Locking Up Asylum-Seekers, Children, Stateless Persons, Long-Term
Permanent Residents, and Petty Offenders?

Photo Courtesy: INS

 We hold these truths to be self-evident; that all men are created equal; that they are endowed by
 their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of
 happiness; that to secure these rights, governments are instituted ... The Declaration of Independence
 I know not whether laws be right, // Or whether laws be wrong; // All that we know who lie in gaol
 // Is that the wall is strong; // And that each day is like a year, // A year whose days are long.
 Oscar Wilde, The Ballad of Reading Gaol

Over the last several years, human rights and              work with detainees have come together in the
immigrant advocacy agencies have exhaustively docu-        Detention Watch Network to identify and publicize
mented the shortcomings in the INS detention system.       the problems that they witness each day.
Reports and articles have detailed significant problems
                                                           The same problems have surfaced with dispiriting
related to asylum-seekers,1 children,2 women,3
                                                           consistency in human rights reports, advocacy
indefinite detainees,4 mandatory detainees,5 immi-
                                                           meetings, and a steady stream of newspaper articles.
grants in local jails,6 the standards governing INS
                                                           Overcrowding, lack of privacy, and despair have
detainees and oversight of its contract facilities,7
                                                           become endemic throughout the INS system. Many
health care,8 immigrants in select INS processing
                                                           inmates languish in the same dormitory-style rooms,
centers and for-profit prisons,9 and particular ethnic
                                                           up to 23 hours a day, without educational or recre-
populations.10 Over the last five years, roughly 100
                                                           ational opportunities. The INS warehouses others in
legal, pastoral, health, and social service agencies who

            REPORT           4    ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                       1
    remote locations, apart from their families and support       security grounds;13 (2) virtually all asylum-seekers
    services. Detainees face multiple hurdles in their            who present themselves at the border but lack proper
    mostly unsuccessful attempts to obtain counsel. Local         documents, until they can demonstrate a “credible
    jailers commingle immigrants with criminals serving           fear” of persecution;14 (3) those seeking admission to
    prison sentences, with predictable consequences for           the United States who appear inadmissible for other
    the immigrants. The INS system suffers from a                 than document problems15; (4) those ordered
    shortage of pastoral services and the lack of a formal        removed for 90 days or, if the person “conspires or
    chaplaincy program. INS officials fail to communicate         acts to prevent his removal,” for more than the 90-
    even the most basic information to detainees about            day “removal period.”16
    their status and situation; detainees often cannot
                                                                  The 1996 Immigration Act and its immediate prede-
    reach the INS deportation officers assigned to their
                                                                  cessor, the Antiterrorism and Effective Death Penalty
    cases. Thousands face long-term detention, typically
                                                                  Act of 1996 (“AEDPA”),17 also culminated a decade
    in facilities designed for short-term use. Jailers fail to
                                                                  of legislation that expanded the crimes for which
    respect dietary restrictions and provide culturally inap-
                                                                  immigrants could be removed and severely restricted
    propriate food. Detainees receive medical care which
                                                                  their ability to contest their removal based on their
    ranges from perfunctory to the shockingly bad. Jailers
                                                                  equitable ties to the United States.18 Under current
    place draconian restrictions on visits by family
                                                                  law, long-term permanent residents, with U.S. citizen
    members, legal counsel, and human rights dele-
                                                                  spouses and children, good jobs, and the absence of
    gations. Immigrants abandon their legal claims to
                                                                  any ties to their countries of birth, can now be
    avoid further detention, only to remain detained for
                                                                  deported for relatively minor crimes that they
    weeks and months afterwards. The INS transfers
                                                                  committed years before. The operative term for one
    detainees frequently, often without reference to
                                                                  category of crimes that trigger removal and
    existing attorney-client relationships or other support
                                                                  mandatory detention — “aggravated felonies” —
    services. Jailers use segregation punitively, and occa-
                                                                  encompasses serious felonies, but also less severe
    sionally for transgressions that result from language
                                                                  offenses like money laundering, tax evasion, fraud,
    difficulties or mental illness. Guards verbally and
                                                                  shop-lifting, receipt of stolen property, obstruction of
    physically abuse detainees. Hunger strikes, suicide
                                                                  justice, perjury, document fraud, smuggling family
    attempts, and even riots occur with alarming
                                                                  members into the country (in some cases), certain
                                                                  gambling offenses, and illegal re-entry following
    At this point, the severity and institutional nature of       removal for an “aggravated felony.”19
    the problems in the INS detention system cannot be
                                                                  Locked up in a hodgepodge of INS “service
    refuted. In effect, immigrants in “civil” custody face
                                                                  processing” centers, for-profit prisons, federal prisons,
    all the privations, inhumanity, and violence of prison.11
                                                                  and local jails, this growing population of “civil”
    Even under our current laws, this need not be the
                                                                  detainees also includes unaccompanied children,
    case. Thousands of immigrants in INS custody could
                                                                  persons in indefinite custody because their countries
    be released under supervision. In addition, the law’s
                                                                  will not accept their return, persons with claims to
    “mandatory detention” provisions could be satisfied
                                                                  U.S. citizenship, torture survivors, and those fleeing
    through home detention and other alternative forms
                                                                  persecution in their home countries.
    of custody. Lending the current system’s problems an
    air of intractability is the seeming inability of INS         The INS has informed CLINIC that, as of July 2000, it
    headquarters, under the agency’s current structure, to        detained 19,300 persons a day. The INS cannot be
    enforce its detention policies on local INS district          blamed for current laws that mandate the detention of
    offices, much less on the jails and contract facilities the   vast numbers of immigrants. The 1996 Immigration
    INS uses to detain most of those in its custody.              Act tied the hands of the INS in many ways, requiring
                                                                  the agency to detain non-citizens who simply should
    Despite its lamentable track record and failure to make
                                                                  not be in custody and exacerbating what had long
    even marginal progress on many of these issues over
                                                                  been a crisis situation. The Act has already caused
    the span of many years, Congress passed legislation in
                                                                  untold suffering for thousands of persons, with no end
    1996, the Illegal Immigration Reform and Immigrant
                                                                  in sight. At the same time, the INS deserves abundant
    Responsibility Act of 1996 (“the 1996 Immigration
                                                                  criticism for: (1) its failure to exercise its discretion in a
    Act”),12 that has nearly tripled the number of non-
                                                                  principled, uniform manner to release those immi-
    citizens in INS custody. The 1996 Immigration Act
                                                                  grants it can; (2) its unconscionable failure to develop
    requires the INS to detain: (1) virtually all immigrants
                                                                  “alternatives-to-detention” that safeguard the public
    inadmissible or deportable on criminal and national

and prevent immigrants from absconding; (3) its
failure to explore cost-effective alternative forms of
                                                           a. The Obligations of
detention (like home detention enforced through elec-         the United States to
tronic monitoring or “tether” programs) that would
satisfy our law’s detention mandates.                         Asylum-Seekers
This report contributes to the now extensive literature    The United States, along with more than 130 other
on the suffering caused by the INS detention system,       countries, has agreed to be bound by international
with a particular focus on persons who should not be       treaties that seek to protect refugees by guaranteeing
detained and the INS’s failure to pursue alternatives      their right to apply for asylum. These include the 1951
for groups that it need not and should not detain.         United Nations’ Convention relating to the Status of
Section A describes the detention of vulnerable            Refugees and the 1967 United Nations’ Protocol
persons, including asylum seekers, women and               relating to the Status of Refugees.21 The Refugee Act
children. Section B covers persons subject to              of 1980 enshrined these international obligations in
mandatory and indefinite detention, as well as those       domestic law.22 Under it, a person cannot be returned
detained based on secret evidence. Section C               to a country where his or her life or freedom would be
recommends steps that could be taken to reform the         threatened on account of race, religion, nationality,
INS detention system.                                      membership in a particular social group, or political
                                                           opinion. Under international law, the United States
                                                           may not return individuals without providing an
A. VULNERABLE GROUPS                                       interview regarding their status; “rejection at the
   UNNECESSARILY IN                                        frontier” is forbidden. Adding to its international
                                                           obligations, in 1994 the United States became a party
   DETENTION                                               to the United Nations’ Convention Against Torture23,
Detention represents a particularly unjust and unnec-      which prohibits the return of persons to countries
essary response to thousands of non-citizens in INS        where they would be in danger of torture, for
custody. Many should not be detained at all. For           whatever reason.
others, detention should be a solution of last resort.     The asylum process can be complicated and
While always difficult, detention causes particular        exhausting to negotiate. Often, victims of human
anguish for certain populations because of their           rights violations must provide extensive documen-
gender, age, and other characteristics. For example,       tation and wait for years while government officials
confinement in correctional facilities with juvenile       evaluate their cases. To complicate matters, both
delinquents can scar immigrant children for life. For      international and domestic standards are constantly in
certain asylum-seekers, detention can evoke and even       flux. The “expedited removal” system, discussed
mirror the conditions they fled.                           below, represents the 1996 Immigration Act’s most
                                                           egregious erosion of the U.S. asylum system.
1. Detention of People                                     In 1996, Congress also introduced a one-year asylum
   Fleeing Persecution                                     filing deadline.24 As it stands, a person who wishes to
                                                           apply for asylum in the United States must do so
The United States has a long and proud history of          within a year of his or her arrival. There are
offering refuge to persons fleeing persecution in their    exceptions to this deadline, but these are narrow and
native lands. This tradition finds expression in the       their interpretation remains uncertain. They include
Statue of Liberty’s welcome to the “huddled masses         provisions permitting “late” filings if the individual can
yearning to breathe free.” With the world’s popu-          show either “changed circumstances” that affected
lation of refugees and asylum-seekers exceeding 14         the person’s eligibility for asylum, or that the delay in
million at the end of 1999,20 the United States’ lead-     filing was caused by “extraordinary circumstances.”25
ership in the areas of refugee protection and              The latter can be shown, for example, by evidence
international human rights has never been more             that the individual was the subject of a medical or
crucial. Unfortunately, the United States undermines       physical restraint which rendered the timely filing of a
its international standing through its laws and policies   claim beyond his or her control, or that he or she
related to those fleeing persecution. The detention of     suffered from a legal disability (e.g., was an unaccom-
asylum-seekers, often for prolonged periods, offers an     panied minor) that effectively prevented the filing.26
egregious example.                                         Getting around the one-year deadline can be a

            REPORT           4     ❘   THE NEEDLESS DETENTION OF IMMIGRANTS                                             3
    daunting task. Immigration Judges (known as “IJs”)             been heard from since, and her attorneys and
    and INS officers often require documentation that              friends fear the worst.
    many asylum seekers cannot secure.
    Detainees face increased barriers in collecting evidence   b. Expedited Removal
    to support their claims. In the worst case scenario,       The 1996 Immigration Act created a new “expedited
    detention can prevent an asylum-seeker from                removal” process to deter the filing of frivolous
    presenting or establishing a claim, and can lead to his    asylum claims. The law targets persons who arrive at
    or her removal. Although the U.S. asylum system            U.S. ports-of-entry with false travel documents or no
    remains generous, new legal restrictions and               documents. It allows the INS to return them without
    procedural glitches serve to undermine its very            a hearing.
                                                               After arrival and initial questioning by an INS officer,
        Anguish Over Her Family Places                         persons subject to expedited removal are sent to
        Asylum-Seeker in Peril                                 “secondary inspection.” Unless they indicate a desire
                                                               to apply for asylum or express a fear of persecution in
        “Mrs. D-” fled her native country, the                 their home country, immigrants processed at
        Democratic Republic of the Congo (DRC), after          secondary inspection face summary return to their last
        her husband was tortured and killed due to his         port of embarkation. If they do successfully convey
        involvement in a pro-democracy movement.
                                                               their fears, they must then demonstrate that they
        Smuggled out of the country by Catholic priests,
                                                               harbor a “credible fear” of persecution. At the
        Mrs. D- was forced to leave behind her eight
        children, ages 8 to 24. Four of these children         credible fear interview, the individual must establish
        were Mrs. D-’s by birth, two belonged to her           that there is a significant possibility that he or she
        husband by a prior marriage, and two were the          could make out a legitimate claim for asylum. Prior to
        adopted children of Mrs. D-’s deceased sister.         a credible fear finding, the asylum-seeker must be
        Upon her arrival in the United States, Mrs. D-         detained.
        filed an application for political asylum.
                                                               In fiscal years (FY) 1997-1999, the INS removed a
        In January 1998, Mrs. D-’s asylum application          total of 189,177 persons pursuant to the expedited
        was “recommended” for approval. A “condi-              removal process, which represents almost half of all
        tional” grant means the asylum application will        persons removed from the country during that
        be approved, once the FBI verifies that the            period.27 Over the same period, 14,951 persons were
        asylum-seeker has no criminal record. In the           referred for a credible fear interview; 88 percent of
        meantime, however, the person cannot sponsor           those referred were later determined to have satisfied
        her immediate family members for admission to          the credible fear standard.28
        the United States. In the case of Mrs. D-, final
        approval did not occur until one year after the        A major problem with expedited removal has been the
        “recommended” grant, due to problems in                secrecy surrounding the secondary inspection process.
        processing her fingerprints. Mrs. D-’s lawyer          The only outside organization that has been allowed
        wrote the INS five letters during this period and      to observe the inspection process is the United
        made repeated telephone calls. Once Mrs. D-            Nations High Commissioner for Refugees (UNHCR).29
        received final approval of her asylum application,     The absence of effective monitoring leaves open the
        an additional nine months passed while she             possibility that asylum-seekers may be removed
        sought visas for her children. Waiting periods like    without a hearing on their claims — a potential
        this have regrettably become the norm.                 violation of the prohibition against “rejection at the
                                                               frontier.” Apart from the concerns it raises from the
        These delays placed Mrs. D- and her children in
                                                               perspective of international law, there is a growing
        peril. In early 1999, Mrs. D- received word from
                                                               realization that expedited removal may not be
        relatives in the DRC that her children, sick and
        malnourished, were living just over the Congolese      essential to deterring frivolous claims. Certain reforms
        border in Rwanda. By the time she received this        adopted by the INS in 1995 significantly reduced
        news, Mrs. D- had been separated from her              asylum filings, obviating the need for expedited
        children for more than 18 months. The anguish          removal.30 Overall, the number of new asylum appli-
        caused by the separation proved too difficult for      cations has declined 75 percent since 1993.31
        her and Mrs. D- left the United States, returning
                                                               Another problem involves the extensive use of
        to Africa to look for her children. She has not
                                                               detention throughout this process, which may be

inconsistent with the international obligations of the          standards and quality of treatment to which they
United States. Article 31 of the 1951 Refugee                   are subjected.36
Convention provides that countries “shall not impose
                                                            Such statements may be looked to as both authori-
penalties, on account of their illegal entry or
                                                            tative interpretations of the Refugee Convention37 and
presence” on refugees arriving from countries in
                                                            illustrations of international opinion. Both Amnesty
which they fear persecution. It goes on to forbid
                                                            International and Human Rights Watch have also
states to apply any “restrictions” to the movements of
                                                            condemned U.S. policy regarding the detention of
refugees unless they are “necessary.”
U.S. law mandates that all arriving aliens seeking
                                                            Given the problems inherent in detaining asylum-
asylum must initially be held in detention if they are
                                                            seekers, one would expect the INS to pursue programs
not in possession of a visa or other proper entry
                                                            that offered alternatives to their confinement. In fact,
documents. As with other INS detainees, asylum-
                                                            the INS has recently funded a pilot program in New
seekers must endure prison-like conditions. In some
                                                            York that provided for the supervised release of
facilities, they have been subject to abuse.32 Family
                                                            asylum-seekers and others not subject to mandatory
members who arrive together are often split apart,
                                                            detention.39 The program sought to satisfy the only
even young children from their parents. Although the
                                                            valid rationale for detaining asylum-seekers — that is,
government calls this “civil detention,” from the
                                                            that they might abscond before appearing for their
asylum-seekers’ perspectives it is in fact a “penalty”
                                                            court hearings.
inflicted “on account of their illegal entry,” and thus
violates Article 31.                                            The INS Fails to Build on Successful Pilot
The Vienna Convention on the Law of Treaties                    Program to Supervise Released Asylum-
requires that “every treaty in force…must be                    Seekers and to Assure Their Appearances
performed…in good faith” and that “[a] treaty shall             in Court
be interpreted in good faith in accordance with the
ordinary meaning given its terms.”33 Detention of               From February 1997 to March 31, 2000, the Vera
                                                                Institute for Justice administered a pilot project to
asylum-seekers in prison-like settings often rises to the
                                                                assure court appearances by immigrants in
level of persecution, and cannot be considered a good
                                                                removal proceedings. This “alternative-to-
faith interpretation of the Refugee Convention. At its          detention” program provided intensive
heart, that Convention expresses a desire to protect            supervision for non-citizens who would otherwise
refugees, as explained in its preamble: “The United             have been detained. The program verified that
Nations has, on various occasions, manifested its               potential participants had a community sponsor
profound concern for refugees and endeavored to                 and a fixed address, and screened them based on
assure refugees the widest possible exercise of …               their community ties, compliance in prior immi-
fundamental rights and freedoms.” The United States’            gration proceedings, and potential danger to
practices do not manifest “profound concern,” but               others. Intensive supervision consisted of
instead discourage the exercise of the right to “seek           “mandatory personal and telephonic reporting,
and enjoy asylum” that is guaranteed in the United              home visits (sometimes prearranged, sometimes
Nations’ Universal Declaration of Human Rights.34               not), and consistent monitoring of participants’
                                                                whereabouts and the progress of their cases.”40
Several international organizations have spoken out             The program also provided information on the
against the detention of asylum-seekers; their                  legal process, made legal referrals, and accom-
statements may be considered persuasive evidence of             panied participants to court hearings.
international opinion. Most notably, the UNHCR has
repeatedly expressed its disapproval of the detention           The 165 persons subject to the program’s
of asylum-seekers.35 Its Executive Committee recently           intensive supervision track included 83 asylum-
                                                                seekers in expedited removal, 16 immigrants that
                                                                had committed minor crimes, and 66 persons
                                                                arrested in work-site raids.41 Overall, 91 percent
    In view of Article 31 of the 1951 Convention
                                                                of the intensively supervised immigrants appeared
    relating to the Status of Refugees and the fact
                                                                for all of their required hearings, including 93
    that the majority of asylum-seekers have not
                                                                percent of asylum-seekers.42 Only two asylum-
    committed crimes — and indeed they are not
                                                                seekers failed to appear for the merits hearings in
    suspected of having done so — their detention
                                                                their cases. Apart from its success in preventing
    raises significant concern, both in relation to the
                                                                flight, intensive supervision cost only $12 a day
    fundamental right to liberty, and because of the

            REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                            5
        per immigrant, compared to the $61 average               limited visiting hours, visiting hours that are not
        daily cost of detention.43 In short, the program         honored, transfers of clients away from counsel, the
        presented a humane and cost-effective alternative        difficulty of reaching clients by phone, collect-call only
        to detention.                                            phone policies within facilities, the inability to conduct
                                                                 attorney/client interviews in private, outdated or inac-
                                                                 curate legal services lists, and long delays in waiting
                                                                 for clients at the facilities. While the INS agreed to
                                                                 implement most of the ABA-proposed standards in its
                                                                 own detention facilities, it has thus far (1) refused to
                                                                 enshrine those standards in a federal regulation, (2)
                                                                 refused to extend the standards to local jails (that
                                                                 house the majority of INS detainees), and (3) failed to
                                                                 address severe telephone access problems in jails.
                                                                 Apart from making it difficult to prepare an asylum
                                                                 case, detention also discourages asylum-seekers from
                                                                 continuing to pursue their claims, especially when they
                                                                 must appeal negative decisions by IJs. The adminis-
    Photo Courtesy: INS                                          trative appeals process usually takes between 6 and
                                                                 12 months, and sometimes longer. After months in
                                                                 detention, many asylum-seekers opt to forego their
    c. The Impact of Detention                                   cases and submit to deportation with all its risks.46
       on Asylum-Seekers                                              The Prospect of Spending Another Year
    Beyond its propriety under international law, the                 in Detention Prompts Refugee to Give
    detention of asylum-seekers raises numerous practical             Up Claim
    difficulties. Of greatest concern, detention burdens
    the ability to pursue asylum claims, and leads many to           “Mr. K-,” an engineer in his late twenties, was
    abandon their cases altogether.44 Most INS detention             living a full life in Cameroon. His business
    centers and contract facilities, particularly local jails,       allowed him to provide for his wife and two
    are located far away from family, legal, and other               young sons. He was also politically active, and
    support systems. Even facilities located in urban areas,         had become a leader on the local level of the
    like the for-profit facility in Elizabeth, New Jersey,           Social Democratic Front (SDF), Cameroon’s oppo-
                                                                     sition party. He knew that his political activities
    cannot be easily reached by public transportation.
                                                                     carried risks, but did not realize their severity until
    Typically, detainees cannot collect the kind of docu-
                                                                     government officials arrested several of his asso-
    mentation necessary to support their claims. For                 ciates at a demonstration he had helped to
    example, asylum cases invariably benefit from medical            organize. After authorities came to his home to
    affidavits setting forth a physician’s opinion as to             arrest him, Mr. K- went into hiding.
    whether injuries actually sustained are consistent with          Subsequently, an article was published (with Mr.
    the asylum-seeker’s account. Yet, statistics gathered            K-’s photograph) reporting that he was wanted
    by Physicians for Human Rights in Boston,                        by the police because of his anti-government
    Massachusetts, indicate that detention hinders the               activities. At this point, Mr. K- fled the country.
    ability to obtain such affidavits. Between July 1, 1999
    and December 31, 1999, Physicians for Human Rights               He arrived in the United States in September
    serviced 73 percent of requests for medical affidavits           1997 and requested political asylum. He was
                                                                     transferred to an INS detention center, where he
    for asylum-seekers not detained, but only 50 percent
                                                                     spent the next four and a half months. Mr. K-
    of requests by detainees.45
                                                                     had a strong asylum case. At the judge’s request,
    Legal libraries in prisons tend to be outdated, and              his lawyer obtained from the U.S. Embassy in
    often do not include current materials on immigration            Cameroon a copy of the newspaper article on his
    laws and procedures. If counsel can be obtained, he              anti-government activities. The U.S. Embassy
    or she must overcome a range of barriers to effective            also put Mr. K-’s lawyer in touch with a high-level
                                                                     SDF official who verified, in writing, Mr. K-’s
    representation. Proposed standards, developed by the
                                                                     status in the party. Notwithstanding this
    American Bar Association (ABA), attempt to address
                                                                     evidence, the IJ denied his claim.
    legal access problems that have historically included

    Mr. K-’s attorney urged him to appeal the judge’s      return Mr. A- to the detention center to verify the
    denial. She thought that the Board of                  status of his appeal. One month later, when it
    Immigration Appeals (BIA) would see the injustice      became clear that Mr. A- did not have an appeal
    of the judge’s decision and reverse it. However,       pending, the INS attempted to deport him again.
    Mr. K- did not want to appeal because he could         Again, Mr. A- was handcuffed, but this time he
    not face the prospect of spending another year in      refused to cooperate and was placed in “segre-
    detention. The long months in detention had            gation.” He was confined to a small cell without
    sapped him of his confidence and resolve, and by       windows, with nothing to read and no human
    the time his case was denied in January, he was        contact. After three days, Mr. A- was returned to
    desperate to be released. Mr. K- was deported to       his dormitory. At this time, he contacted his
    Europe on February 15, 1998. On June 24, 1999,         attorney, who admitted to him that no appeal
    he was granted asylum in France.                       had been filed. Mr. A- then immediately
                                                           contacted the UNHCR, which advised him that he
Many flee to the United States in the hope that they       could file an application for protection under the
will be provided a fair opportunity to show that their     Convention Against Torture, which he did. One
rights have been violated. Some have spent time in         week later, detention officials again told Mr. A-
prison because of their political or religious beliefs.    that he was going to be deported. UNHCR
Many have been tortured by prison guards, soldiers,        contacted Mr. A-’s deportation officer and
and others. Others have lost family members, friends,      explained that a Torture Convention claim was
and colleagues to violence. For such persons,              pending. As a result, the INS agreed to suspend
detention invariably comes as a shock and can evoke        the deportation.
the very conditions that they fled.
                                                           Mr. A- obtained a new lawyer who assisted him
    Caught in a Web, Through No Fault of                   in filing a “motion to reopen” his asylum case
    His Own                                                based in part on changed country conditions. An
                                                           IJ granted the motion. By now, after a year in
    “Mr. A-” is a native and citizen of the DRC. He        detention, Mr. A- found his continued detention
    fled the regime of Laurent Kabila in fear of perse-    difficult to endure. While detained, Mr. A- was
    cution for having worked in housing projects for       allowed only one hour of recreation each day in
    the former regime of Mobutu Sese Seko.                 an “outside” courtyard with very high walls and
                                                           a heavily screened roof. Mr. A- left the facility
    Mr. A- had been arrested, imprisoned and               only on his periodic trips to the airport and once
    tortured for three days by the Kabila government.      to be hospitalized. He could receive visitors only
    Unable to obtain a passport from the government        one day a week, and then for only 30 minutes at
    he was fleeing, Mr. A- attempted to enter the          a time.
    United States with a passport that did not belong
    to him. At the airport, he spent 17 hours hand-        Like others in the facility, Mr. A- saw no need for
    cuffed and shackled to a stool in a small room.        his continued confinement, especially since his
    He passed a credible fear interview and was sent       case had been reopened and he had shown that,
    to a detention facility. After three adjournments      under the new circumstances in the DRC, he had
    caused by Mr. A-’s inability to obtain an attorney,    a legitimate asylum case. He decided to join a
    an IJ denied his claim. Mr. A-’s detention made it     hunger strike protesting the harsh conditions at
    difficult for him to secure qualified legal counsel.   the facility and the INS’s unjust release policies.
    He was ultimately forced to settle for a lawyer        On the 14th day of the strike, prison officials
    who knew very little about his case, had visited       placed Mr. A- and other participants in solitary
    Mr. A- only once prior to the proceeding, and          confinement for one week. Mr. A- only drank
    presented no evidence about the conditions in          water during this period. By the last day of his
    the DRC. The lawyer also failed to appeal the          confinement, he attempted to commit suicide by
    decision, despite having told Mr. A- that an           swallowing Ben Gay and Tylenol. A guard
    appeal would be filed.                                 noticed him lying on the floor next to the empty
                                                           Ben Gay container. He was shackled, handcuffed
    After the IJ’s decision, the INS twice tried to        and taken to the emergency room of a nearby
    remove Mr. A- from the United States. On the           hospital. He remained in the hospital for two
    first occasion, officials handcuffed him, humil-       days, chained to the hospital bed.
    iating him before other travelers passing through
    the airport. During the ride from the airport          After his condition stabilized, Mr. A- was returned
    terminal to the plane, the officials were told to      to the detention facility. The INS promised to

            REPORT          4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                      7
        review the strikers’ cases and to release those             Against Torture in the United States. At the
        found deserving of parole, but apparently this              hearing, the IJ granted Mr. Z-’s application for
        never occurred. In July 1999, Mr. A- participated           relief, finding in part that those taken into
        in another hunger strike, this one lasting a week.          custody in Sudan routinely face torture and
        Some of the strikers were transferred to                    human rights abuses. By this point, Mr. Z- had
        maximum security jails. The remaining partic-               been confined for more than a year.
        ipants, fearing transfer to facilities where they
        would be housed with criminals, gave up the             The detention of torture survivors, like Mr. Z- and Mr.
        strike.                                                 A-, is cruel and inappropriate. The United States has
                                                                ratified the Convention Against Torture and Other
        In September 1999, almost two years after he            Cruel, Inhuman, or Degrading Treatment or
        requested asylum, an IJ approved Mr. A-’s claim.        Punishment, and in 1998 it implemented that treaty.
        Upon his release, nine days later, Mr. A- filed for     The Convention Against Torture prohibits the return of
        a work permit and a social security card. He            those who have “good reasons” for believing that
        received his work permit five weeks later. When         they would be tortured if they were returned to their
        Mr. A-’s social security card finally arrived in mid-   home countries. Torture survivors often find detention
        November, he found a job working at the                 in the United States especially traumatic because
        reception desk of a youth hostel.                       prison reminds them of what happened to them in
    As Mr. A-’s case demonstrates, detention takes a            their own countries. Handcuffs, leg irons, belly chains,
    particular toll on asylum-seekers who typically cannot      prison jumpsuits, strip searches, and abusive guards
    understand why they are being “punished.” There             can summon painful memories and trigger post-
    were numerous junctures in Mr. A-’s case when               traumatic stress disorder.
    release would have been appropriate: (1) when Mr. A-
    passed his credible fear screening; (2) when it became          Three Years Lost in INS Detention Prior
    clear that he qualified for protection under the                to Obtaining Asylum
    Convention Against Torture; and (3) when the IJ
                                                                    “Mr. E-,” a 41-year-old Kenyan, opposed the
    granted his second attorney’s motion to reopen. The
                                                                    government in his home country. After being
    fact that none of these events prompted the INS to              arrested at a demonstration, he spent five years
    release Mr. A- raises fundamental questions about the           in a Kenyan prison where the authorities beat him
    system.                                                         with rifle butts and burned his skin with hot metal
                                                                    pliers. After his release, members of the oppo-
        Detained For More Than a Year, Despite                      sition party held him illegally for nine months
        Committing No Crime                                         because they accused him of revealing party
                                                                    secrets. When he managed to escape, he fled
        “Mr. Z-,” a Sudanese national, was detained in              the country.
        the United States after indicating that he wished
        to apply for asylum. He based his claim on both             Mr. E- arrived in the United States as a stowaway
        the harm he feared because he refused to be                 in early 1997. He requested asylum and was
        drafted into the Sudanese national army and                 transferred to an INS detention center. Mr. E-
        persecution he had already suffered at the hands            could not afford an attorney. Although he had
        of Sudanese rebels when he refused to let them              only a seventh grade education, he was forced to
        appropriate his family’s livestock. Mr. Z- had              represent himself in immigration court. Not
        been brutally attacked by the insurgents, as                surprisingly, the judge denied his claim. Mr. E-
        attested to by a series of marks on his back. His           appealed the decision. A year and a half later,
        detention, however, made it difficult to schedule           the BIA sent Mr. E-’s case back to the IJ, who
        a medical interview and a medical report was not            denied it again. Mr. E- appealed a second time.
        available on the day of his asylum hearing. The IJ          The entire process took more than three years.
        denied his asylum application.
                                                                    Mr. E-’s time in detention was extremely difficult
        The rejection of his claim left Mr. Z- in anguish.          for him. He had terrible memories of the torture
        He could not comprehend what purpose his                    he had suffered and detention made it harder for
        detention served. Ultimately, he requested to be            him to overcome this trauma. At times, Mr. E-
        deported to the United Kingdom, rather than to              became so depressed that he lost hope. He
        continue life in the detention facility. When the           attempted suicide more than once. After two
        United Kingdom refused to accept Mr. Z-, he                 and a half years at the INS detention facility, the
        agreed to pursue a claim under the Convention               INS transferred him to a county prison in a

    different state. Although Mr. E- was held with        the parents have been removed from the United
    criminals at the county prison, he preferred it to    States. Even if the INS eventually releases the parents,
    the INS detention center because he had the           the family is typically in far worse condition for having
    chance to go outdoors.                                gone through the experience.

    In March 2000, the BIA granted Mr. E-’s asylum            Husband and Wife Detained in Separate
    request. When he was released a few days later,           Pods and Away From Their Children
    after three years in detention, he kissed the
    ground in front of the prison.                            In March 1998, the INS took “Mr. and Mrs. M-”,
Detention particularly devastates families who must           political asylum-seekers from El Salvador, into its
                                                              custody, leaving their 21- and 18-year-old
wait months or even years for their loved ones to be
                                                              daughters and a 16-year-old son to fend for
released. Beyond the emotional distress caused by
                                                              themselves. For 16 months, Mr. and Mrs. M-
separation, family members on the outside often face          lived in (separate) overcrowded “detention”
grave economic hardship. In other cases, the INS              pods, where they were required to stay — to
detains entire families, but in different locations and       sleep, eat, shower, and use the bathroom — 23
often fails to inform them of the others’ fate.               hours a day. Separated from each other and from
                                                              their children, Mr. and Mrs. M- tried to maintain
    Unreasonable Detention Policies Split                     their spirits through Bible study and helping other
    Up Family Fleeing Persecution                             detainees.47 Apart from the absence of privacy,
                                                              they endured shoddy medical care and, in the
    “Mr. and Mrs. D-” arrived at an international             husband’s case, threats from gang members. Mrs.
    airport in the United States without proper docu-         M- now tests positive for tuberculosis. In fact,
    mentation after fleeing Algeria. Because Mrs. D-          exposure to tuberculosis and other infectious
    had worked for the Algerian government, she               diseases threatens to reach crisis proportions in
    had been repeatedly harassed and threatened by            teeming INS facilities.48 Mr. M-, in turn, nearly
    Islamic extremists, who not only viewed her as an         died from a burst appendix that the detention
    enemy, but also believed that women did not               authorities neglected to treat for two days.
    belong in the workplace. Immediately upon their           According to the couple, the facility’s health clinic
    arrival in the United States, Mrs. D- and her             typically provided detainees with Tylenol,
    husband expressed a desire to apply for asylum.           whatever their symptoms.
    While still at the airport, the INS arrested them.
    It then placed them in different facilities without       Prior to their detention, the family owned a
    telling them what was happening to the other.             triplex, living in one unit and renting the other
    When Mr. and Mrs. D- eventually tracked each              two. Without their parents, the children could
    other down, officials prohibited them from seeing         not meet the mortgage payments, and were
    or telephoning each other. Although Mrs. D-               evicted in November 1998. After their eviction,
    wrote to Mr. D-, he did not receive her letters.          the oldest child dropped out of college and took
                                                              part-time work as a parking attendant to support
    The INS later removed Mrs. D- from the                    her siblings. She lived with friends. The second
    detention facility and placed her in a jail with          daughter cleaned, cooked, did laundry and cared
    inmates serving criminal sentences. During her            for two children, in return for lodging for her
    five weeks in detention, Mrs. D- became severely          brother and herself. Mr. and Mrs. M- sent the
    depressed. Once released, she had no                      children any money they could scrape together
    knowledge of her surroundings, no place to go             by selling their food rations and artwork to other
    and no money. In addition, the INS neglected to           detainees.
    provide her with information on her husband’s
    status. Since the INS did not provide advance             In July 1999, the couple was released from
    notice that Mrs. D- would be released, there was          detention, without work, a home, health
    no opportunity to make living arrangements for            insurance, or means of support. One week prior
    her. Mrs. D- left detention scared and confused.          to their release, each underwent a medical exami-
                                                              nation that included chest x-rays. While Mrs. M-
    The INS released Mr. D in July 1999, one week             was only x-rayed once, Mr. M- received x-rays on
    after his wife. They will soon have a hearing on          four consecutive days. Mr. M- requested his
    their asylum claims.                                      medical records, but did not receive them and
                                                              was assured that “no news is good news.” In
In many cases, children must fend for themselves until
                                                              January 2000, after his release, Mr. M- developed
their parents are released from custody or even after
                                                              a severe cough. A second round of x-rays

            REPORT           4    ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                           9
         revealed a cancerous tumor in his lung. In early       (release) based on urgent humanitarian reasons or
         February, doctors removed half of his lung. The        significant public benefit.50 Yet, inconsistent release
         doctors have told Mr. M- that a tumor of the size      practices have plagued the expedited removal process
         removed could not have developed in the six            from the outset.51 Significant numbers of asylum-
         months since his release from detention.               seekers have been unnecessarily detained for months
     The INS detention system often fails to accommodate        or years because certain INS districts arbitrarily refuse
     the religious practices and other unique needs of those    to release them. INS headquarters’ failure or inability
     in its custody.                                            to enforce uniform release policies has been abun-
                                                                dantly documented, as have the shifting release
         Moslem Somali Youth Observing                          practices of local district offices. In 1998, the INS
         Ramadan Placed in 24-Hour Lock-Down                    districts in Miami, Los Angeles, New York, and New
                                                                Jersey each changed their release policies.52 In 1997,
         On November 28, 1999, “Mr. H-,” a 17-year-old          individuals who passed the credible fear screening
         Somali, arrived at a U.S. airport and requested        were generally denied parole everywhere but in New
         asylum. He had been persecuted due to his              Jersey. Starting in 1998, the INS began to release
         membership in the Midgaan clan, an ethnic
                                                                asylum-seekers in these other sites.53 Release became
         minority considered “untouchable” in Somalia.
                                                                almost automatic for detainees in Miami.54 Some
         His mother was from another ethnic group, and
         married his Midgaan father against the will of her     districts currently parole very few detainees. In FY
         family. She and her husband had been killed            1999, for example, only about nine percent of
         because of their marriage.                             asylum-seekers held in the Elizabeth Detention Center
                                                                in New Jersey were released from detention.55
         Although Mr. H- had no criminal history, the INS
                                                                In short, custody determinations often turn on where
         detained him at a state correctional center,
                                                                and when the person is detained, rather than the
         placing him in a medium security unit with adults
         serving criminal sentences. A devout Moslem,           equities of his or her case. Certain INS districts
         Mr. H- was observing Ramadan and could not eat         regularly refuse parole to qualified applicants. Others
         during daylight hours. One evening, he was             normally release asylum-seekers who meet the
         served ham (which he could not eat) for dinner.        requirements. In recent years, the New Jersey and
         On another occasion, he tried to save a chicken        New York INS districts have been particularly intran-
         sandwich served at lunch for his dinner. For this,     sigent in their refusal to release bona fide
         he was punished with 24-hour lock-down in his          asylum-seekers.56 As human rights agencies have
         cell.                                                  documented, many of these persons receive asylum
                                                                after months in detention at taxpayer expense.57
         On December 18, 1999, he was released from             Adding insult to injury, in some cases, the INS does
         detention to stay with his cousin. His asylum
                                                                not ultimately contest their asylum cases. In effect,
         case will be heard soon.
                                                                such persons have been detained for no reason at
     d. The Need for Consistently
                                                                    INS Needlessly Detains Asylum-Seeker
        Generous INS Release                                        Later Granted Asylum
        Practices                                                   “Mr. F-,” a 23-year-old asylum-seeker from
     Although the law requires the INS to detain asylum             Somalia, was held for more than four months in
     seekers who arrive at airports without proper                  INS detention. He was denied parole even
     documents, it also presumes that the INS will release          though he had passed a preliminary screening
     those who have passed the credible fear screening.             interview, had established his identity, had a U.S.
                                                                    citizen cousin willing to care for him, and had no
     INS detention guidelines state that “it is INS policy to
                                                                    criminal record.
     favor release” for asylum-seekers who can meet these
     requirements.49 Released asylum-seekers can pursue
                                                                    Mr. F- fled Somalia after a bomb was thrown into
     their cases while living with relatives or friends who         his home by members of the majority Hawiye
     have legal status in the country.                              clan militia. The bomb killed his father and
     In theory, all INS districts should follow the same            severely burned Mr. F-’s face and hands.
     release standards. The statute provides for parole             Neighbors hid Mr. F- for months while his
                                                                    wounds healed. He then fled Somalia. Mr. F-’s

    mother, who militia members later attempted to            where he ate, slept, showered, and used the
    rape, remains in hiding. The bombing culminated           toilet (without any privacy). He could never go
    a series of attacks against his family and other          outside, but only to a room with high walls and a
    members of the Meheri clan. On one occasion,              partially open ceiling covered with wire. His
    Hawiye militia members had severely beaten Mr.            friends and family could visit him through thick
    F-’s father when he attempted to stop them from           glass in the non-contact visitation area for no
    sexually assaulting his wife. Mr. F- was tied up          more than one or two hours a week.
    and held in another room during the attack. He
    heard his mother’s cries and his father begging           After an INS officer determined that Mr. L- had a
    the men not to harm his family.                           credible fear of persecution, his attorneys
                                                              requested that he be paroled from detention to
    In detention, Mr. F- was plagued with memories            the care of his family and friends. He has six
    of the horrors he had faced. He suffered from             cousins in the United States, one a U.S. citizen
    migraine headaches, had difficulty sleeping, and          and the others permanent residents. His parole
    woke up with images of his family’s persecution           request was supported by a U.S. citizen family
    fresh in his mind. In addition, the skin on his           member who lived nearby and a family friend
    body that had been burned often caused him                who was a city engineer. Notwithstanding these
    pain.                                                     ties, the INS refused to release Mr. L-. After
                                                              three months, an IJ granted him asylum.
    If released, Mr. F- would have been able to seek
    therapy. Instead, months of detention
    compounded his trauma. After more than four
    months, he was granted asylum and released.
Release determinations should not turn on the
vagaries of geography or the idiosyncracies of local
INS officials. There should be a national policy
mandating the release of bona fide asylum-seekers
and this policy should be uniformly applied. It is
particularly cruel to detain asylum seekers who have
family or friends willing to house and care for them.

    Political Prisoner Flees to the United
    States, Where He Finds Detention
    Instead of Freedom
    “Mr. L-” was a pro-democracy activist in his
    native Nigeria. His beliefs led him to organize
    demonstrations against Nigeria’s notoriously
    corrupt military government. He was involved in
    rallies protesting the assassination of former
    president Abiola’s wife, as well as the suspicious   Photo Courtesy: INS
    death of Chief Abiola in prison. Because of Mr.
    L-’s activities, he was repeatedly arrested and
    severely beaten by authorities. After the military   e. Lack of Access to Legal
    government detained Mr. L- and killed his
    brother, Mr. L- fled from Nigeria. Unable to
                                                            Assistance for Detained
    obtain travel documents from the government             Asylum-Seekers
    that was persecuting him, Mr. L- arrived at the
    United States without proper documents and           Most detained asylum-seekers cannot obtain legal
    requested asylum.                                    representation, although this can make all the
                                                         difference in the outcome of their cases. In 1999, 506
    Mr. L- was taken in handcuffs to an INS              of 2,072 (almost 25 percent) of represented detainees
    detention center where officials strip-searched      who applied were granted asylum. In the same year,
    him and forced him to change into a prison           only 40 of 1,172 (3.4 percent) of unrepresented
    jumpsuit. From that point on, he faced               detainees received asylum.59
    confinement 22 hours a day in the same room

            REPORT          4     ❘   THE NEEDLESS DETENTION OF IMMIGRANTS                                        11
     Immigrants in removal proceedings enjoy a statutory        Because representing detainees is time-consuming and
     privilege of legal counsel, but “at no expense to the      costly, private attorneys often charge more than their
     government.”60 According to the INS, this language         normal rates and nonprofit agencies cannot accept
     does not preclude government funding to support            significant numbers of these cases. As a result, large
     immigrant legal services.61 However, a different           numbers of detainees go to court unrepresented.66
     statute bars federal agencies from employing counsel
                                                                The problem is compounded for immigrants detained
     “for the conduct of litigation in which the United
                                                                in remote locations. For example, the 1,000-bed
     States, an agency, or employee thereof is a party, or is
                                                                Bureau of Prisons (BOP) facility used by the INS in
     interested.”62 The INS has concluded that in combi-
                                                                Oakdale, Louisiana is two and a half hours away from
     nation these provisions prohibit “using appropriated
                                                                the nearest major city, Baton Rouge. No free legal
     funds to pay the salaries of persons representing
                                                                services are currently available to detainees at
     aliens.”63 At the same time, it concedes that the
                                                                Oakdale, and only one private immigration lawyer
     federal government can fund “things that will
                                                                regularly goes to the facility. Detainees in remote
     facilitate aliens obtaining representation.”64
                                                                county jails face the same dilemma.
         Executive Office for Immigration Review
                                                                    Mozambican Asylum-Seeker Detained
         Fails to Build on Successful Pilot Project
                                                                    for Three Years in Remote Arizona
         to Provide “Legal Rights” Presentations
         to Detainees
                                                                    “Mr. S-,” a 29-year-old asylum-seeker from
         In the summer of 1998, the Executive Office for            Mozambique, has been detained for more than
         Immigration Review (EOIR), the division of the             three years in Eloy, Arizona. Because an IJ
         Department of Justice that oversees IJs and the            mistakenly found Mr. S- barred from applying for
         BIA, funded a modest pilot project that provided           asylum, he has never been able to present his
         “legal rights” presentations to detainees in three         claim. Because he was poor and detained in a
         sites. The project sought to determine whether             remote location, Mr. S- could not find a lawyer.
         informing INS detainees of their “legal rights”            The Eloy facility is located in the middle of the
         would have any impact on representation rates,             desert; until recently few free legal services were
         the efficiency of deportation proceedings, or INS          available to detainees there.
         detention expenditures. The project took place
         over a 90-day period at the Florence, Arizona              Mr. S- and his family fought in the Mozambican
         detention facility (staffed by the Florence                civil war. His father was a well-known local
         Immigration and Refugee Project), the San Pedro            leader of the Mozambican National Resistance
         INS Processing Center in Los Angeles (staffed by           (RENAMO), which opposed the communist
         CLINIC), and the Port Isabel INS Processing                government. Mr. S- himself had been a
         Center in Harlingen, Texas (staffed by the South           RENAMO soldier since age 14. After his parents
         Texas Pro Bono Asylum Representation Project).             were captured and killed, the authorities began
                                                                    looking for Mr. S-. He fled the country, and
         In its program evaluation, the EOIR concluded              eventually made his way to the United States.
         that the “rights presentations” benefitted the
         detainees, the INS, and IJs.65 Detainees bene-             Mr. S- crossed the U.S.-Mexico border with no
         fitted from accurate legal information and                 documents, no money, and nowhere to go. He
         increased rates of legal representation. The INS           approached a church in an Arizona border town,
         benefitted from reduced anxiety among detainees            hoping for assistance. Finding no one there, he
         and decreased detention costs, as the “rights              took a bicycle that was leaning against the wall.
         presentations” convinced many to abandon their             When he returned the bicycle, he was arrested
         cases since they did not have viable legal claims.         and charged with burglary. He pled guilty and
         IJs, in turn, were able to complete more cases in a        was sentenced to 80 days in jail and three years
         summary fashion and benefitted from immigrants             probation. He was then turned over to the INS,
         who came to their hearings informed about the              taken to the Eloy facility, and placed in depor-
         process and the law. The report estimated that it          tation proceedings.
         would cost $1.3 million to expand the project
         nationwide. Although a humane, cost-effective              At Eloy, Mr. S- could not find a lawyer to
         program, EOIR apparently has no plans to                   represent him for a price he could afford. No pro
         replicate it.                                              bono lawyers were available. At what was
                                                                    supposed to be Mr. S-’s final hearing, the IJ told

    him that he was barred from applying for asylum.
    Under a new law, the judge maintained, Mr. S-
                                                             f. Inadequate Health Care
    was considered an aggravated felon. In fact, the
    judge was mistaken, which an immigration lawyer
                                                                and Failure to Release
    could have brought to his attention. However,               Those with Severe
    Mr. S- was unable to defend himself and, as a
    result, he spent the next three years in detention.         Medical Conditions
    His 1999 request for protection under the
                                                             The shoddy and occasionally life-threatening health
    Convention Against Torture was denied. When
                                                             care provided to immigrants has been a consistent
    he finally obtained legal representation, his lawyer
    appealed his case to the BIA, where it is currently      theme in human rights reports on the INS detention
    pending.67                                               system over the last decade.69 Recent reports indicate
                                                             that, if anything, the quality of care has deteriorated
Some INS detainees try to represent themselves, but          in recent years.
even if their prison happens to have an updated legal
library with immigration materials (and most local jails     In 1998, for example, Human Rights Watch found
do not), few can master the complex legal procedures         extreme problems in the medical care provided to INS
and standards that apply to their cases.                     detainees in local jails, including “lack of prompt
                                                             treatment, requirements that detainees pay for
Detainees also face problems with new procedures for         medical treatment, inadequate diagnosis or treatment
conducting removal hearings. In particular, removal          of mental problems, inability to communicate with
hearings are increasingly being held by video-               detainees seeking medical treatment, and a dental
conference.68 In these cases, the judge and the              policy in which extraction is the sole remedy for every
detainee observe and speak to each other through             dental problem.”70 The report identified poor
monitors in both the court and the detention center.         management as the source of these problems,
The INS trial attorney likewise remains in the court         concluding that “INS has no discernible policy
room. The detainee’s counsel may appear in person            regarding which medical services should or should not
or telephonically.                                           be provided by local jails.”71 A recent investigation by
The INS and EOIR view video-conferencing as a tool           the DOJ’s Civil Rights Division regarding the medical
to provide removal hearings for non-citizens who are         care provided to inmates in one INS contract facility,
serving criminal sentences, obviating the need to            the Jackson County Correctional Facility in Florida,
transfer them to an INS detention facility. In this way,     uncovered significant problems in “access to care;
the INS hopes to facilitate the deportation of               physician supervision of medical care; medication
detainees not eligible for relief from removal.              access and management; chronic illness management;
                                                             emergency/urgent care; infectious disease control;
Video hearings put asylum-seekers at a distinct disad-       mental health care; care and supervision of isolated or
vantage. An in-person hearing affords an                     restrained inmates; and medical diets.”72
asylum-seeker a better opportunity to establish a
human connection with the judge and to demonstrate           In 1999, Amnesty International concluded that the
his or her credibility. Video-conferencing also interferes   INS violated international standards for the treatment
with a detainee’s right to counsel because it allows the     of detainees by failing to determine whether asylum-
INS to keep a detainee at a distant location, away           seekers in its custody had been tortured and, as a
from counsel and other support systems. If the               consequence, failing to take appropriate steps to
detainee can secure counsel at all in these circum-          manage their trauma.73 The report found that the INS
stances, pre-trial attorney/client contact is limited.       victimized many asylum-seekers by placing them in
The ability to examine witnesses, object to questions        solitary confinement for behavior caused by past
by the INS, and otherwise provide adequate represen-         trauma.74
tation at the hearing may also be compromised.               The additional stress placed on the INS system by
                                                             mandatory detention does not bode well for improved
                                                             medical care in the future. The cases of Mr. and Mrs.
                                                             M-, discussed above, illustrate the increased risk of
                                                             contracting infectious diseases (like tuberculosis) and
                                                             the inability of detainees to obtain appropriate care in
                                                             overcrowded facilities. Language difficulties often
                                                             exacerbate problems in medical treatment. New

            REPORT            4    ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                            13
     arrivals often do not speak English. While the U.S.             Asylum-Seeker Who Is More Than Seven
     Public Health Service, which provides medical services          Months Pregnant Nearly Goes into Labor
     in many facilities, can use telephone interpreters to           in Detention
     communicate with detainees in their own languages,
     doctors and nurses often insist on speaking in English.         “Mrs. I-” fled her home country, Nigeria, in order
     The INS also continues to detain asylum-seekers who             to seek asylum in the United States. When she
     should be released for medical reasons.                         arrived, although she was seven and a half
                                                                     months pregnant, the INS detained her. For more
         Asylum-Seeker with Facial Paralysis                         than four days, she suffered from a high fever
         Cannot Communicate with Doctor                              and vomiting. After five days in detention, she
                                                                     went into false labor and the INS finally took her
         “Mr. H-,” a young Somali, came to the United                to a local hospital. Although the law generally
         States to apply for asylum. He belongs to a small           prohibits the release of asylum-seekers before
         minority clan in Somalia, and feared persecution            they have passed the credible fear screening, in
         from the large clan militias that fight for control         this case the INS could have released Mrs. I-
         over the country. One of these militias                     under regulations that allow for parole “to meet a
         imprisoned and tortured Mr. H-, and killed his              medical emergency.” After Mrs. I-’s condition
         father. Mr. H- eventually made his way out of               stabilized, the INS attempted to take her into
         the country, and bought a ticket to the United              custody again, but the hospital refused to release
         States. He had to buy travel documents because              her because of her medical condition. Ultimately,
         Somalia had no government that could validly                Mrs. I- received parole on humanitarian grounds,
         issue them. Upon arriving at an international               allowing her to live with her relatives in the
         airport, he was transferred to a detention facility.        United States.

         After almost five months, Mr. H- was still waiting
         in detention for his asylum hearing. One
         afternoon, while brushing his teeth, he was
         suddenly unable to move the muscles on the
         right side of his face, which felt completely numb.
         He panicked, and with the help of another Somali
         detainee, asked to see a doctor. The nurse who
         examined him later that night did not make a
         diagnosis, but told him that he needed to see a
         doctor. Yet, three days passed without Mr. H-
         seeing a doctor. During that time, Mr. H- was
         terrified that he had suffered a stroke. On the
         fourth day, a doctor finally examined him. Mr. H-
         does not speak or read English, so he asked for
         an interpreter. The doctor refused. Although the
         doctor diagnosed Mr. H- with Bell’s palsy, which
                                                                Photo Courtesy: INS
         is not a serious condition, Mr. H- was not able to
         understand the diagnosis. During subsequent
         medical examinations, public health personnel
         consistently refused Mr. H-’s requests for an inter-
                                                                g. Lack of Access to Pastoral
         preter. Mr. H- remained confused and fearful,             Care and Social Services
         and was often unable to sleep at night because
         he was so worried about his health.                    Immigration detainees experience loneliness, frus-
                                                                tration, confusion, and despair. Like prisoners serving
         Mr. H-’s paralysis and numbness went away after        criminal sentences, they are separated from friends
         a few weeks. However, he reports that the expe-        and family and face the daily indignities of incar-
         rience was the most frightening and                    ceration. They also face the additional stress of
         dehumanizing aspect of his detention. After            uncertainty. Unlike criminal prisoners, INS detainees
         more than eight months in detention, Mr. H- was        cannot predict the length of their detention. Even
         granted asylum and released.                           worse, they do not know if they will ultimately be
                                                                released or deported to a country where they might
                                                                be persecuted. In these circumstances, the assistance
                                                                of pastoral and social workers can make all the

difference. Unfortunately, the INS does not have a
formal chaplaincy program for those in its custody
                                                          h. Overcrowding
and, as a result, many detainees do not have access to    The physical conditions at detention facilities,
pastoral services.                                        including overcrowding and the resulting lack of
                                                          privacy, drive many detainees to despair. At the
    INS Terminates English Classes and                    Elizabeth Detention Center in New Jersey, which the
    Bible Study for Asylum-Seekers                        INS considers a model facility, asylum-seekers spend
                                                          22 hours a day in the same room. In that room, as
    “Ms. R-,” a single mother of twins, came to the       many as 40 people eat, sleep, shower, and use the
    United States in February 1997. When she              bathroom. They must use the toilets and showers in
    arrived at the airport and asked for asylum, she
                                                          plain view of other detainees and guards. They can
    was handcuffed and transferred to a detention
                                                          never go outdoors, only to an indoor room with a
    center. Ms. R-’s asylum claim has twice been
    denied by an IJ, and her case is currently on         partially-open ceiling that is covered with a chain-link
    appeal. Although she has no criminal record, Ms.      fence. Some men and women have been living in
    R- has spent more than three years in INS             these conditions for more than two years.
    detention. She wears a prison uniform, and            The INS’s Krome Service Processing Center in Miami
    sleeps, eats, showers, and uses the toilet in the
                                                          has consistently suffered from overcrowding. In
    same room that she shares with other detainees.
                                                          recent years, the center’s population has risen from
    She is never allowed outside.
                                                          300 to 550, and at times, has exceeded 600.75 While
    Detention under these conditions has caused Ms.       many of those confined at Krome have criminal
    R- great anguish. She worries constantly about        convictions, others are asylum-seekers who arrived at
    her twin boys in Africa. She believes that her        the Miami International Airport.
    stress and inactivity contribute to her high blood
                                                          As a result of overcrowding, temporary cots have
    pressure. Despite poor English language skills,
                                                          become a staple at Krome, and buildings that were
    Ms. R- managed to communicate her frustrations
    and fears to the priest who celebrated mass at        supposed to be closed or used for other purposes are
    the facility. With his help, she contacted the        now being used to house detainees. At this writing,
    Jesuit Refugee Service (JRS).                         16 cots have been added to six of the pods for
                                                          detainees with criminal convictions, even though
    Ms. R- became an avid participant in programs         those pods were already filled to their maximum
    that JRS provided at the detention center. She        capacity of 50 persons. Detainees have complained
    attended an English class each week and was able      that mattresses for these cots have been in short
    to forget temporarily that she was in prison. The     supply. Moreover, officials have converted part of the
    new words she learned helped her communicate          Public Health Service building into housing for
    with guards and other detainees. She also             detainees and male asylum-seekers have been housed
    regularly attended Bible study sessions and small     in a building that was supposed to be closed.
    group pastoral visits, which “helped [her] learn
    about God.” “You know, sometimes all you              The overcrowding has not only made daily life more
    want to do is cry, cry in detention,” she said.       difficult for detainees, it has also limited attorney
    “But then you see it doesn’t help anything. So        access. Because of the high numbers at Krome, daily
    instead I pray ... I leave it to God.”                counts taken at the facility are frequently inaccurate,
                                                          resulting in recounts which effectively close the facility
    In late 1999, the INS canceled all of these           for hours. Since detainees must remain in one location
    programs because the pastoral volunteers
                                                          during this time, attorneys who would like to visit their
    discussed detention during Bible study and
                                                          clients must either wait or return another day.
    English class. The INS said that this violated its
    (unwritten) rules, raising the question, if not
    detention, what would pastoral workers discuss
    with detainees? Ms. R- now finds that she has
    nothing to look forward to and has begun to
    “think too much” again. After more than four
    months, Bible study classes finally began again.
    Now, however, she says that the classes are
    monitored by the INS and “are not conducted
    with joy like before.” English classes and pastoral
    visits are still prohibited.

           REPORT           4    ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                             15
                                                                to a detention center. She remained detained
                                                                there for seven months before being transferred
                                                                to a county jail.

                                                                At the jail, Ms. T- was strip-searched and placed
                                                                in minimum security. Shortly after her arrival, she
                                                                was moved to the maximum security section
                                                                without explanation, even though she was a non-
                                                                criminal detainee. When she saw the conditions
                                                                of the other prisoners in maximum security, Ms.
                                                                T- became despondent and started crying. She
                                                                attempted to explain that she sought asylum and
                                                                was not a criminal.

     Photo Courtesy: INS                                        Her protests seemed to enrage the guards, who
                                                                yelled at her and forcibly took her to her cell.
                                                                Ms. T continued to cry. As a result, the guards
     i. Abuse by Prison Officials                               placed her in what they called the Bad Attitude
        and Misuse of Segregation                               Unit or “BAU.” Prisoners viewed the BAU as a
                                                                form of punishment for rule violations.
     The conditions in INS “processing centers” and
     contract prisons has led to hunger strikes, suicide        Ms. T- was seated on the floor in the cell when a
     attempts, and even riots.76 Abuse by guards and            female guard and a nurse entered and told her to
     other detention officials represents a recurring theme     take off her uniform. She complied, but refused
     in reports on the INS system.77 For example, ten           to remove her underwear and her bra. The two
     guards at the Union County jail in New Jersey were         women held Ms. T- and forcibly took off her bra
                                                                and underwear. Ms. T- then went to sit on the
     convicted for various offenses related to assaults
                                                                bed to cover herself with a blanket, but the bed
     against INS detainees in their custody.78 Among
                                                                did not have sheets or a blanket; it was a
     other abuses, the guards beat and kicked immigrants,       mattress covered in plastic. She hid under the
     stuffed their heads into toilets, yanked out their pubic   bed because she was embarrassed to be naked.
     hair, and squeezed their tongues with pliers.79 In a
     bitter irony, the victims of these assaults had been       Two large male guards arrived and pulled her
     transferred to Union County from the INS contract          from under the bed. Five guards then
     facility in Elizabeth, New Jersey where, according to      surrounded her and threw her into the middle of
     an INS report, they had been “subjected to                 the cell. The guards asked whether she was
     harassment, verbal abuse, and other degrading              hearing voices or was trying to kill herself. She
     actions” by guards.80 At that facility, for example,       responded that if she had wanted to kill herself
     guards refused to issue sanitary napkins to women          she would have remained in her own country.
     and provided them with oversized male underwear            She told them that she was upset at the way they
                                                                were treating her. A guard then threw her on the
     marked with hand-written question marks on the
                                                                bed in the cell. Because it had no sheets or
     crotch area.81
                                                                blankets, it was very cold. The two male guards
                                                                held her down. One held her arms and head
         Abuse of Asylum-Seekers
                                                                against the bed while the other held down her
         “Ms. T-” arrived in the United States three years      legs. Meanwhile, another guard injected her with
         ago, as a 19-year-old asylum-seeker. In her            a drug. The guards then released her. She again
         native Uganda, Ms. T- had opposed the                  hid under the bed to hide her nudity. The drug
         government and supported the opposition rebels.        had no effect on her. About 30 minutes later, the
         As a result, the government threatened to kill her.    guards returned, pulled her out from under the
         After the military kidnapped her sister thinking       bed and took her to another cell.
         that it was Ms. T-, Ms. T- fled Uganda in the only
         way open to her, with false documents.                 When they arrived at the new cell, the guards
                                                                threw Ms. T- on a bed, and shackled both her
         Ms. T- arrived at an international airport a few       legs and her arms to the bed so that she was
         days later. After she asked for asylum, the INS        facing up. She cried out in fear. A guard again
         handcuffed her, shackled her ankles, and took her      injected her with a drug. She continued to cry. A
                                                                guard returned and put a towel on her stomach,

    but this did not cover her entire body so Ms. T-             necessary to prevent Mr. X- from committing
    attempted to move the towel with her shackled                suicide. Mr. X-’s attorney estimates that he has
    hand to cover herself, bruising her hand.                    spent more than seven months in solitary
                                                                 confinement since his arrival in the United States.
    Ms. T- was shackled to the bed for two days.
    She was unconscious during part of the time,                 A judge denied Mr. X’-s application for political
    perhaps due to the injections. Finally, she was              asylum and the BIA upheld this denial. The IJ
    taken to a doctor. He asked her some questions               also denied his claim under the Convention
    and told her that she could return to the                    Against Torture, citing minor inconsistencies in his
    minimum security section of the prison. The                  testimony. An appeal of the IJ’s decision is
    guards, however, refused to return her. After 55             currently pending before the BIA.
    days in maximum security, the INS transferred
    Ms. T- back to the INS detention center. She was             During Mr. X-’s prolonged segregation at the INS
    released from detention about a year and a half              detention center, his attorney made several
    after arriving in the United States. The IJ granted          requests that he be afforded a psychological eval-
    her asylum request four months later. Ms. T- is              uation and appropriate mental health care. After
    now attending school and trying to forget her                his requests were ignored, the attorney notified
    ordeal.                                                      detention officials that a lawsuit would be filed.
                                                                 Shortly thereafter, the INS transferred Mr. X- to a
At times, detention officials misuse segregation,
                                                                 state prison where he was also placed in solitary
turning it from a disciplinary tool into an instrument of        confinement. Recently, he was sent to a different
cruelty. Segregation seems a particularly cruel                  state correctional center, where he is being held
response to persons suffering from mental or physical            in a mental ward.

    Misuse of Segregation for Mentally Ill                   j. Improperly Informing
    Detainee                                                    Foreign-Government
    Mr. X-, a Sri Lankan national, arrived in the               Officials of Asylum-Seekers
    United States in April 1998. He had endured
    torture by his country’s government, as evidenced           in Detention
    by his broken fingers. Mr. X- hoped to pass
    through the United States in transit to Canada,          INS regulations require the agency to maintain the
    where he planned to join his sister and brother-         confidentiality of asylum-seekers.83 Asylum- seekers
    in-law. However, due to his invalid travel               often fear that if officials from their own governments
    documents, the INS placed him in expedited               learn that they have come forward with their stories,
    removal. Although he passed a credible fear              their family members abroad will be endangered. Or,
    screening, Mr. X- remained in detention. At the          if they do not ultimately receive asylum, they will be
    detention center, Mr. X- suffered serious rectal         at even greater risk of persecution themselves.
    bleeding, hemorrhaging, and depression. His              Unfortunately, these fears are often justified.
    medical problems were so severe that he was
    often unable to sleep at night. When he slept he         In order to protect asylum-seekers and their families,
    wore diapers, which were soaked with blood by            the United States must take seriously its responsibility
    morning. Several of his fellow detainees wrote a         to maintain confidentiality. Some INS districts,
    letter to the detention center officials stating their   however, ignore this duty. For example, in New York,
    concerns about his health. On one occasion,              asylum-seekers from certain countries have received
    unable to sleep and in agonizing pain, Mr. X- left       letters informing them that their consulates were
    his bunk and went to the common eating area.             notified that they are in INS detention. In themselves,
    At 3:00 a.m., a guard found Mr. X- sitting in the        the letters comply with a regulation that requires the
    room and listening to his walkman. For failing to        United States to notify certain governments of the
    obey the center’s rules, the guard placed Mr. X-
                                                             detention of their nationals.84 However, the INS has
    in solitary confinement.
                                                             gone a step further and informed consulates that their
    While detained, Mr. X- exhibited mental health           nationals are detained at facilities which hold only
    and behavioral problems. He attempted suicide            asylum-seekers. This effectively violates the prohi-
    several times. Rather than providing Mr. X- with         bition against informing foreign governments of their
    appropriate treatment, officials placed him in           nationals’ asylum claims.
    solitary confinement, arguing that this was

            REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                            17
       Confronted by the Government That
       Killed His Parents
       “Mr. B-,” a 27-year-old, fled his native country in
       Africa after the authorities murdered his mother
       and father outside their home. His father, a
       political activist, was shot by soldiers while Mr. B-
       watched from a window. After his parents’
       deaths, Mr. B- learned that he himself was also
       wanted by the authorities. A friend of his
       father’s, who was hiding Mr. B-, insisted that he
       flee the country.

       In October 1999, Mr. B- fled to the United States
       with someone else’s passport. As is typical in          Photo Courtesy: INS
       such cases, he could not secure his own travel
       documents from the authorities in his country.
       Upon his arrival, Mr. B- was detained at an INS
                                                               2. Protecting the Most
       detention center. By March, he had obtained free           Vulnerable: Detention of
       legal assistance and had begun to feel secure in
       the United States. One day, however, he was                Women and Children
       called to the visitation area, where he expected to
       see his lawyer. Instead, he was confronted by           The detention of bona fide asylum-seekers raises
       two representatives from his country’s consulate        significant concerns about the viability of the United
       who said they wished to interview him. Mr. B-           States’ protection regime. Particularly troubling is the
       was shocked, because he had not contacted his           long-term detention of those who raise cutting-edge
       government and did not wish to speak to                 asylum claims. Increasing numbers of women and
       members of the regime that killed his parents.          children, for example, are filing for asylum based on
       He believes that the INS notified his government        claims that stretch the traditional confines of asylum
       of his presence and brought them in to see him.85       law. These cases merit particular attention; the
       Since the facility where Mr. B- was detained holds      UNHCR estimates that women and children comprise
       almost exclusively asylum-seekers, it would have        up to 80 percent of most refugee populations.86
       been obvious to the consular representatives that       However, adjudicators often dismiss novel claims,
       Mr. B- had requested asylum.
                                                               failing to recognize their merits under modern refugee
                                                               principles. As a result, many asylum-seekers who
       Mr. B- is now worried that if he loses his asylum
       claim and is deported, the government will count        make gender- or age-based claims must endure long
       his asylum request as another strike against him.       periods of detention while their cases run their course.

                                                               a. Women in Detention
                                                               One of the most publicized cases raising gender issues
                                                               in recent years involved Fauziya Kassindja, a citizen of
                                                               Togo.87 After the death of her father, Ms. Kassindja
                                                               was taken in by an aunt who insisted not only that
                                                               she marry a much older man against her wishes, but
                                                               also that she undergo female genital mutilation
                                                               (FGM), a procedure that disfigures the female
                                                               genitalia. Her asylum claim was initially presented
                                                               while Ms. Kassindja was in INS detention. An IJ
                                                               denied the claim, maintaining that FGM did not
                                                               constitute persecution against a specific group, but
                                                               conformed with a general cultural norm. Eventually,
                                                               Ms. Kassindja obtained asylum through a landmark
                                                               ruling by the BIA that FGM constituted persecution
                                                               for asylum purposes.88 The case paved the way for
                                                               many similar claims.

Ms. Kassindja’s case arose prior to expedited removal.        Severely Battered Asylum-Seeker
Had expedited removal been in place, her fate would           Detained
certainly have been different. There would have been no
mechanism to correct the decision reached by the judge.       Mrs. K-, a 50-year-old native of the DRC, was
                                                              married to a military officer who served under the
The system was tested some time later with the case           regime of former President Mobutu. Together,
of Adelaide Abankwah, a young woman from Ghana                they had four children, ages 24, 21, 12 and 7.
who, unlike Ms. Kassindja, was placed in expedited            During the course of their marriage, Mr. K-
removal upon her arrival. After passing her credible          repeatedly raped and severely beat Mrs. K-. Mrs.
fear interview, Ms. Abankwah was confined in the              K- also contracted sexually transmitted diseases
Wackenhut detention facility, where she remained for          from her husband. According to the U.S.
a year and a half. She was 29 and a member of the             Department of State, domestic violence is wide-
Nkumissa tribe. This tribe punishes women who                 spread and rarely reported in the DRC.
engage in premarital sexual relationships. When faced         Moreover, the DRC has no laws that address
with an arranged marriage which would have revealed           spousal abuse, and no crisis centers or hotlines for
                                                              victims. Due to Mr. K-’s high ranking military
that she had engaged in premarital sex, Ms.
                                                              status and the refusal of the government to
Abankwah began to fear that FGM would be
                                                              intervene in what it considers a “private” matter,
performed on her and she fled to the United States.           Mrs. K- had no protection from her batterer.
An IJ denied her asylum claim, and the BIA affirmed.
A federal court eventually overturned this denial,            In early 1998, Mrs. K- nearly escaped death after
holding that the judge and BIA had imposed too high           a gruesome beating that left her unconscious for
a burden of proof.89                                          four days. She was threatened with a gun,
                                                              punched, kicked, raped, and dragged across the
The decision represented a triumph for asylum-
                                                              floor, before her son was able to transport her to
seekers. At the same time, it highlighted the                 her brother’s home. After Mrs. K- recovered
difficulties created by detention in such cases. Ms.          enough to travel, she fled to the United States
Abankwah’s case attracted considerable attention              using her sister’s passport. She could not secure
from the news media, lawyers and advocacy organi-             her own passport because she feared that officials
zations, fortifying her decision to pursue her case.          at the passport agency would alert her husband
Other women, however, almost certainly have failed            that she was trying to flee.
to raise or have abandoned similar claims in the face
of open-ended detention.                                      Upon her arrival in the United States in March
                                                              1998, Mrs. K- passed a credible fear interview
Immigrants who fear the consequences of a purely              and was sent to an INS detention center. She
“personal” dispute have traditionally not been found          filed an application for political asylum, arguing
eligible for asylum. Yet a growing class of asylum-           that she had suffered persecution as a member of
seekers maintain that they fear abuse at the hands of         the social group consisting of Congolese women
their husbands, and that their government will not            who refused to live at the mercy of abusive
protect them.90 The UNHCR has unequivocally stated            husbands. The IJ and subsequently the BIA
that countries are free to apply the refugee definition       denied her application. Her case was later
so as to include women fleeing domestic violence in           reopened and she applied for relief from removal
these circumstances.91 Canada, for example, issued            under the Convention Against Torture. In August
                                                              2000, 29 months after her arrival in the United
guidelines recommending that women should be
                                                              States, Mrs. K- was granted protection under the
recognized as refugees if they suffered domestic
                                                              Convention Against Torture and was released
violence, provided that they could not secure                 from detention.
protection from their governments.92 The Canadian
Guidelines were mirrored in similar INS guidelines
adopted in the United States,93 and several IJs have
                                                          b. Children in Detention
granted asylum to women based on unchecked                Children also deserve special treatment in our immigra-
domestic abuse in their homelands. In a 1999              tion system. As in the case of women seeking asylum,
decision, however, the BIA rejected the claim of a        the United States has followed Canada in adopting
woman who had been beaten by her husband and              model guidelines intended to establish an appropriate
repeatedly denied government protection.94 The            methodology for deciding children’s claims.95 The U.S.
decision has already been used to deny at least one       guidelines recognize that certain forms of human rights
asylum claim that raised similar issues.                  abuses can only be experienced by children.

            REPORT          4     ❘   THE NEEDLESS DETENTION OF IMMIGRANTS                                           19
     The celebrated case of Elian Gonzalez, the six-year-old        Twin Brothers Flee Street Gangs, Find
     Cuban boy whose custody became a battleground for              Refuge
     international relations, drew significant attention to
     the issue of children in INS custody. Every year, the          Jose Luis Oliva and Jose Enrique Oliva are 16-
     INS apprehends several thousand unaccompanied                  year-old twin brothers from Honduras.103 The
     minors (under 18 years of age) attempting to enter to          Border Patrol arrested them last summer after they
     the United States.96 All of them are arrested, almost          swam across the Rio Grande. The INS placed
     all of them are detained for some period, and many             them in a detention facility, where they remained
                                                                    pending a decision on their cases. The children
     are eventually deported. In FY 1998, the INS reported
                                                                    maintain that if returned to Honduras, there
     having detained roughly 5,300 children; it deported
                                                                    would be no one to care for them, they would be
     880 of them.97 In FY 1999, the INS detained 4,607              forced to live on the street, and their lives would
     undocumented juveniles under the age of 18 and                 be at risk. Their mother abandoned the boys
     returned 1,218 juveniles.98 These children travel by           when they were 22 days old. They lived with
     land, air and sea, and come from all corners of the            various relatives who physically abused them.
     globe. A large number originate in Mexico, South and
     Central America, but children’s advocates report               The asylum applications filed by these boys raised
     assisting detained minors from as far away as Sri              novel questions. During the pendency of their
     Lanka, Albania, Pakistan, and China.                           cases, they remained in detention. The INS
                                                                    argued that releasing the boys would leave them
     The United States’ detention of unaccompanied                  homeless. Their lawyers argued that some form
     minors has come under intense criticism. For                   of secure housing, distinct from detention, was
     example, Human Rights Watch concluded that “unac-              required in light of their age and vulnerability.
     companied children awaiting determination of their             The lawyers requested the appointment of a
     status should not be detained,” and that “the U.S.             special guardian to safeguard the children’s
     Congress should not charge the same agency with the            interests.
     care of unaccompanied, undocumented children and
     also the enforcement of immigration laws against               Jose Luis’ and Jose Enrique’s cases had a happy
     them.”99                                                       ending. The IJ granted asylum to the boys on
                                                                    February 7, 2000.
     International organizations envision a system that
     nurtures and cares for children, instead of one that
     imprisons them. The UNHCR maintains that “children
     seeking asylum, particularly if they are unaccom-
     panied, are entitled to special care and protection.”100
     This should include education, health care, and
     appointment of a special guardian “with expertise in
     the field of child caring.”101 In such a system, “unac-
     companied minors should never be detained on
     account of illegal entry or presence.”102
     International treaties affirm the same themes. Article
     20 of the 1990 United Nations’ Convention on the
     Rights of the Child, which the United States has not
     ratified, provides that unaccompanied children “shall      Photo Courtesy: INS
     be entitled to special protection and assistance
     provided by the State” and that if not sent to foster
                                                                    Detained While Only Eleven Years Old
     care, they should be sent to “suitable institutions for
     the care of the children.” Placement in detention              Eber Sandoval is an 11-year-old from Honduras.
     centers and jails, especially with adjudicated juvenile        After crossing the Rio Grande last summer near
     delinquents, is not envisioned and would certainly             Brownsville, Texas, Eber was detained at a special
     violate the spirit of the treaty. Despite these interna-       facility for juveniles located in Los Fresnos, Texas.
     tional standards, the United States routinely detains          Shortly after his birth, both of his parents
     children arriving in the country, many of whom fled            abandoned him. Like Jose Enrique and Jose Luis,
     intolerable situations in their home countries.                Eber maintained that in Honduras he would have
                                                                    been forced to participate in gang activities and
                                                                    that security forces would have retaliated against

    him. In addition, he had no one to look after him           Ultimately, the gang members killed the judge to
    there. While Eber was detained at a more appro-             whom J- had reported the theft.
    priate facility than Jose Enrique and Jose Luis, the
    detention of children always raises concerns.104            Upon his apprehension by the Border Patrol in
    Eber received political asylum in March 2000, and           1997, J- was taken into INS custody. He filed an
    was released from custody shortly thereafter.               asylum application in January 1998. An IJ denied
                                                                the application in late February 1998. The BIA
    15-Year-Old Girl Detained in Juvenile                       denied his appeal in October 1998. During this
    Jail for Seven Months Prior to Asylum                       time, J- remained in detention. The day after the
    Grant                                                       BIA denied the case, his representative filed a
                                                                request for an interview under the Convention
    In a case that gained national attention, a 15-             Against Torture and requested a stay of depor-
    year-old girl arrived in the United States from             tation. Nevertheless, the INS deported J- to
    China on April 9, 1999. She had been smuggled               Honduras.
    into the United States at the request of her
    parents. As the third child in her family, the girl         J-’s representative contacted INS headquarters
    had been denied education, medical care, and                and explained the situation. The INS agreed that
    other basic rights in China under her nation’s              his deportation had violated the Torture
    family planning policy. Upon her arrival in the             Convention and that he should be returned to
    United States, she applied for political asylum. In         the United States. An officer instructed J-’s repre-
    May 1999, she was transferred to a juvenile jail in         sentative to have J- proceed to the U.S. Embassy
    Portland, Oregon, where she remained detained               in Tegucigalpa.
    (with criminal offenders) throughout the
    pendency of her application. Although granted               Since J- was in hiding, finding him in Honduras
    political asylum in late October, she was not               proved difficult. His representative had a phone
    released until mid-December. INS officials                  number of one of his uncles, who lived in
    blamed the delay on their inability to find and             northern Honduras. After a week of trying to
    approve a sponsor for the girl. They cited the              reach him, the representative spoke with the
    complex approval process for placement of                   uncle and explained the situation. The uncle had
    children smuggled into the United States,                   not seen or heard from his nephew since his
    explaining that smugglers often pose as sponsors.           return. However, knowing that the boy’s life was
                                                                in danger, the uncle embarked on an eight-day
    In this case, however, shortly after her arrival, the       trip to southern Honduras, where J-’s family was
    girl had identified an uncle who resided in New             then living. By the time he had reached southern
    York. Although he was willing to act as a                   Honduras, Hurricane Mitch had struck. The
    sponsor, her placement with him faced multiple              family was not able to get J- to the Embassy until
    delays. After he visited the New York INS office            late December 1999. Upon his arrival, confusion
    in September to straighten out the situation, an            among Embassy officials and difficulty securing
    INS home study was ordered. However, this was               appropriate travel documents further delayed J-’s
    not conducted until early December 1999.105                 travel to the United States. During this time, J-
                                                                was paralyzed with fear, and stayed in hiding.
Bureaucratic inefficiencies and other shortcomings in
the system can also conspire to send detained children          He was finally able to return to the United States
back to life-threatening situations.                            in January 2000 and received asylum shortly
    Deported to Honduras by Mistake, Boy
    Finally Makes It Back                                   Children venture alone to the United States for a
                                                            variety of reasons.106 Many come to join parents or
    In late 1997, “J-,” a national of Honduras, was         family members already here. Some arrive fleeing
    apprehended while attempting to cross the               persecution or war in their home countries. Some
    southern border. At the age of 17, he had fled          come because they have been neglected or
    his native country due to persecution by a gang.        abandoned by their parents. Some children are sent
    J-’s troubles started when gang members stole a         by their families to earn money to send back home.
    cow belonging to his family. Although he knew
    that the gang members might seek revenge, J-            Their port of entry, age, immigration history, and the
    reported the incident to a judge. In retaliation,       availability of INS bed space all determine where a
    the gang members attempted to kill him. During          child will be placed. Some children are held at
    one attack, a bullet barely missed him.                 privately-run, state-licensed shelter-care facilities.

           REPORT            4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                           21
     Others, though, are not as fortunate. The INS has               Fifteen-Year-Old Boy on Vacation,
     reported that it has access to 500 beds in nonprofit            Wrongly Suspected of Having False
     shelters, group homes and foster care facilities.107 Yet,       Documents, Spends More Than a Month
     this does not suffice.                                          in Detention
     Shelter-care facilities are generally run by nonprofit
     agencies under contract with the INS. For example,              “N-,” a 15-year-old native of Pakistan, came to
                                                                     the United States to spend his summer vacation
     there are approximately 60 beds in Chicago at the
                                                                     with relatives in California. Upon arrival at the
     International Children’s Center, administered by the
                                                                     Los Angeles International Airport, N- presented a
     Heartland Alliance for Human Needs and Human                    valid passport and tourist visa to immigration
     Rights. The population there consists mainly of                 officials. The officials asked him why he came to
     Chinese children, ages 13-17, who arrived at interna-           the United States and N- stated the purpose of
     tional airports throughout the country. The children            his visit. The officials did not believe him and
     take regular field trips, receive legal rights presen-          suspected that he intended to remain in the
     tations at least once a week, and visits by legal               United States permanently. They charged him
     representatives from the Midwest Immigrant Rights’              with inadmissibility for possession of improper
     Center at least twice a week. Similarly, all of the             entry documents. He was transferred to INS
     approximately 50 Central American minors held at the            custody without an opportunity to speak to the
     International Educational Services shelter in Harlingen,        relatives awaiting his arrival.
     Texas have weekly access to legal advice, and take
                                                                     N- was detained at a state juvenile corrections
     recreational field trips.
                                                                     facility for more than one month. Twelve days
     Detention rarely serves a child’s best interests, partic-       passed before his first immigration hearing. No
     ularly when family members or social service agencies           interpreter was provided at the hearing, and
     can care for him or her. The settlement agreement of            another week passed before N- was afforded a
     a class-action law suit mandates certain standards for          second hearing. Not until two additional hearings
                                                                     did the IJ terminate proceedings, finding that his
     the detention of children. The settlement, reached
                                                                     documents were valid and he only intended to
     years ago in the case of Flores v. Reno,108 ended a
                                                                     visit family temporarily.
     challenge brought by several national organizations on
     behalf of unaccompanied minors in the Western                   Throughout his detention, N- endured deplorable
     Region of the INS. Under the Flores agreement,                  conditions. Officials detained him in a unit for
     minors held in juvenile detention facilities or other           juveniles with criminal convictions. He was
     non-shelter environments must be “separated from                confined in a small room. The staff spoke exclu-
     delinquent offenders” and must be transferred to                sively in English and no interpreters were
     shelter-type facilities within three to five days,              provided to explain the rules of the facility to
     depending on the availability of space.109 There are            him, increasing the boy’s confusion and anxiety.
     many exceptions to this policy, however, that leave             Some meals contained pork, which he does not
     hundreds of children unprotected. For example, INS              eat due to religious convictions. Dietary options
     minors may be held indefinitely in corrections facilities       were not provided to N-, and as a result he was
                                                                     often hungry. Daily exercise was mandatory.
     “in the event of an emergency influx.”110 In addition,
                                                                     Undernourished and weak, N- was threatened
     the INS has carte blanche to hold any minor who is
                                                                     with pepper spray when he was physically unable
     adjudicated or even suspected of being a delinquent             to participate. Telephone calls were only allowed
     or a flight risk at a “juvenile detention facility.”            sporadically after 5:00 p.m. on weekdays and on
     The Flores agreement requires that even minors with             Saturdays. This policy inhibited N- from main-
     criminal backgrounds be held in “separate accommo-              taining contact with his relatives and informing
                                                                     his counsel of his treatment and scheduled
     dations” from those with adult criminal convictions.
     However, in practice, commingling regularly takes
     place. In Los Angeles, for example, INS minors are          Many minors, although they have no criminal back-
     routinely mixed with the general criminal population.       grounds, are held at government or privately-run
     Attempts to correct this situation with the Los Angeles     correctional institutions. For example, the INS in Los
     district have been unsuccessful.                            Angeles places arriving minors with no suspected
                                                                 criminal involvement at Los Padrinos juvenile hall, a
                                                                 correctional facility run by the Los Angeles County
                                                                 Probation Department. Los Padrinos is a locked-

down, secure facility, where juvenile offenders are              the Anaheim Asylum Office to interview the
held separately from the INS minors. Although                    mother and child for possible legal representation.
religious volunteers are present there, the children             The attorney reported to the downtown head-
never leave the facility on field trips or other                 quarters of the INS, where she first met the
excursions. When moved into or out of the facility,              terrified little girl. L- was silent, staying close by
officials handcuff them. Attorneys may conduct indi-             her mother, clinging to her stuffed animal.
vidual visits, but not legal rights presentations. Pepper
                                                                 Just a few hours after the interview, the attorney
spray is an official tool of discipline, and the children
                                                                 received a desperate phone call from the mother.
report problems obtaining access to telephones.                  The mother had been separated from her child
The situation is completely different at Casa San Juan,          and taken to the INS San Pedro detention facility.
a converted convent run by Catholic Charities two                Even worse, she had not been informed of L-’s
hours away in San Diego. There, children can remain              fate or whereabouts. Through CLINIC’s inter-
                                                                 vention, the mother learned that her daughter
with their mothers and keep some of their toys. They
                                                                 was being held at Los Padrinos, the juvenile
may venture outside freely after school hours.
                                                                 corrections hall run by the Los Angeles County
Attorneys and religious volunteers have access to all            Probation Department. At Los Padrinos, L-’s
rooms in the facility, including the bedrooms and the            stuffed animal had been taken away from her
kitchen.                                                         and she was given vaccination shots without
Unfortunately, the INS does not have nearly enough               understanding what they were. No one at the
                                                                 facility spoke her language, and most of the other
shelters for families and unaccompanied minors. As a
                                                                 girls were almost twice her age.
result, in a wholly unacceptable practice, it often
separates children from their parents. In Los Angeles,           Mother, daughter and father were separated for
for example, the INS recently held two mothers at an             more than six days until their credible fear
INS detention center, while their children were sent to          interviews took place. During that time, they
a juvenile corrections facility. In one case, a Chinese          could not see each other, and were only allowed
mother arrived with her 10- and 12-year-old boys in              to speak twice on the telephone.
January 2000. Instead of placing the three at the San
                                                            Children should never be separated from their parents.
Diego shelter or a similar facility, the INS detained the
                                                            They should never be confined with criminals in
boys at Los Padrinos juvenile hall and the mother at
                                                            juvenile prisons, much less with adults serving their
the INS San Pedro detention facility. Officials did not
                                                            criminal sentences. Detention of children should be
tell the mother of the whereabouts of her sons, and
                                                            avoided whenever possible. If necessary to confine
denied her repeated pleas to contact them. In the
                                                            children at all, they should be kept in shelter-care
end, the woman became so distressed that she had a
                                                            facilities appropriate to their unique needs and vulner-
seizure and was hospitalized for several days. It was
                                                            abilities. It represents a national disgrace that, after
not until a month later that the mother and sons were
                                                            years of mistreating children in its custody, the INS still
reunited with the boys’ father in New York.111
                                                            separates children from their parents, still places
    Torn From Her Mother’s Arms: Eight-                     children in facilities for adjudicated delinquents, and
    Year-Old Czech Girl Forced into Juvenile                still lacks adequate shelter space for all of those in its
    Criminal Corrections Facility
    Eight-year-old “L-” arrived at the Los Angeles
    airport with both her parents in February 2000.
    The family had fled the Czech Republic, where
    their lives had been repeatedly threatened by the
    Russian mafia.

    After they arrived at the airport, they were kept
    in an INS holding area for three days. INS
    officials at the airport interviewed the family and
    determined that they were entitled to a credible
    fear interview. The INS sent the mother and
    daughter to a local hotel, and placed the father in
    INS detention. A CLINIC attorney was asked by

            REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                              23
                                                              Not to be confused with indefinite detainees who can
                                                              be released under our laws, “mandatory” detainees
                                                              account for most of the growth in the INS system. The
                                                              1996 Immigration Act mandates the detention of
                                                              various categories of immigrants while their removal
                                                              hearings run their course. The largest group of
                                                              mandatory detainees consists of non-citizens who
                                                              have committed criminal offenses, but completed their
                                                              prison terms. While some should be kept detained
                                                              because they represent a danger to others, many
                                                              “mandatory” detainees committed relatively minor
                                                              crimes, often long ago, and enjoy strong ties to the
                                                              United States.

                                                              1. Indefinite Detainees
                                                              After a non-citizen receives a final order of removal,
                                                              the INS normally has 90 days to effect his or her
                                                              removal from the United States.116 If the INS cannot
                                                              remove the immigrant during this time, he or she can
                                                              be released from detention.117 However, this decision
                                                              lies with the local INS district directors who can keep
                                                              in detention persons that they determine represent a
                                                              danger or a risk of flight.118 For many immigrants
                                                              with final orders of removal, the 90 days come and go
                                                              and the INS still has not deported or released them.
     Photo Courtesy: INS                                      The INS refers to people in this situation as “lifers” or
                                                              “unremovables.” Many spend years in INS custody.
     B. INDEFINITE,                                           Unlike U.S. citizens who cannot be punished twice for
                                                              the same offense, non-citizens sometimes receive an
        MANDATORY AND                                         even harsher punishment by the INS.
        SECRET EVIDENCE                                           One Conviction, Two Sentences
        DETAINEES                                                 In 1993, “Mr. R-” arrived in the United States
                                                                  after fleeing Cuba. He was granted parole in the
     According to INS officials, the United States detains        United States. Under current immigration law,
     roughly 5,000 immigrants on any given night who              Cuban nationals paroled into the country are
     cannot be deported because their countries of origin         allowed to apply for permanent residence after
     will not take them back.112 Most indefinite detainees        one year.119 Although Mr. R- never completed
     come from countries without diplomatic ties to the           this process, he resettled in the United States and
     United States, with the largest single population            began work as a mechanic, sending money on a
     coming from Cuba.113 As of August 1999, there were           regular basis to his three children, ages 9, 12, and
     1,750 Cubans in detention who arrived in the Mariel          17, in Cuba.
     boatlift,114 and almost 600 non-Mariel Cubans.115
     Another large group of indefinite detainees came to          Mr. R- was arrested at a party with friends. The
     the United States as refugees from Vietnam, Laos and         host of the party had cocaine at his apartment.
     Cambodia, countries that now refuse to accept their          Unfamiliar with the criminal justice system here,
     return. Others are stateless, or come from countries         Mr. R- followed the instructions of his attorney
     that have no functional or central government. Still         and pled no contest to a cocaine trafficking
     others have been granted relief under the Convention         charge to avoid spending time in jail. In
     Against Torture, which prohibits the return of those         September 1996, he was sentenced to three years
     who would be at risk of torture at home, but does not        of supervised probation.
     necessarily lead to their release. A minority come
     from a growing list of countries that customarily            In November 1996, when Mr. R- reported for
     accept the return of their nationals, but refuse to do       probation, the INS took him into custody. As a
     so in individual cases.                                      result of his conviction, the IJ ordered him

     “excluded” (deported) a month later. However,                for him as soon as he can be released. He wants
     because the United States does not have                      to get back to work and continue his life.
     diplomatic relations with Cuba, Mr. R- could not
     be deported. Instead he remained in detention
     for more than three years. During the summer of
     1999, he received his first custody review.
     Despite assurances from his permanent resident
     brother that he would help Mr. R- find
     employment, Mr. R- was denied release. Not
     until March 2000 did the INS finally release him
     under an order of supervision. Although Mr. R-
     served no jail time for his criminal offense, he
     spent more than three years in detention because
     the INS could not deport him.
In recent years, the issue of indefinite detention has
become more widely publicized as strict immigration
laws force more people into INS custody. On August
6, 1999, the INS took the important step of estab-            Photo Courtesy: INS
lishing a national policy regarding the provision of
regular custody reviews for all indefinite detainees.120      In July 2000, the INS published a proposed rule to
However, characteristically, certain district directors did   codify an amended version of its policy regarding
not implement the instructions from INS headquarters.         review of indefinite detention cases.122 The proposed
Advocates reported that in many sites INS detainees           rule creates for all indefinitely detained immigrants a
did not receive notice of their custody reviews,              review process that tracks the one that has been in
precluding their ability to marshall evidence in support      place for Mariel Cubans since 1987. The apparent
of their release.121 In other districts, the attorneys of     objective of the proposed rule is laudable — that is, to
record did not receive notice. In several sites, the INS      transfer authority for custody reviews from the local
did not provide notice of custody decisions within 30         district directors to a newly established “Headquarters
days, as required by the instruction. In some places,         Post-Order Detention Unit” (“HQPDU”) if the
notices denying release included cursory or inadequate        detainee has not been removed six months after
explanations. Worst of all, in some cases, “indefinite        receiving a final order of removal. However, the rule
detainees” did not receive custody reviews at all.            decreases the frequency of reviews from every six
                                                              months (as stipulated in the August 6, 1999 policy
     INS Fails to Comply with Its Own                         instruction) to once a year. In addition, the rule elim-
     Instructions                                             inates review of custody decisions by the BIA,
                                                              completely insulating the process from non-INS review.
     In 1995, “Mr. U-,” a 22-year-old Cuban, came to
     the United States to start a new life. After             The proposed rule also adopts the current policy of
     resettling in the United States, he obtained work        sending written notices to the detainees at least 30
     for a telephone company. In 1996 he was                  days in advance of each custody review. Although
     convicted of trafficking cocaine. He was                 the 30-day time-line is intended to provide detainees
     sentenced to three years in prison but was               with time to gather documentation in support of their
     released early, after about two-and-a-half years,        release requests, in practice 30 days is not enough
     for good behavior. He was transferred to INS             time to obtain legal counsel or letters from often
     detention. While in detention, the INS reviewed          uncooperative prisons regarding their institutional
     Mr. U-’s file to determine whether he should be
                                                              records. After the INS custody review takes place, the
     released. Mr. U- received a denial letter (without
                                                              detainee may still remain in detention for months
     any rationale) from the INS in mid-July 1999,
     which informed him that he would have a                  without receiving a response.
     custody review interview in six months. Under
     the new INS policy, Mr. U- should receive a
                                                                  While He Waits, His Family Suffers
     written notice 30 days before his interview. To
                                                                  “Mr. D-” originally came to California as a
     date, though, more than six months have passed
                                                                  refugee when he was four years old, fleeing the
     and he has still not received a notice of an
                                                                  communist government of Yugoslavia. His family
     interview. Mr. U- has a construction job waiting
                                                                  in the United States includes two children, his

            REPORT            4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                            25
         father, and 11 siblings who are U.S. citizens. All       on the duration of detention for those who cannot be
         of Mr. D-’s major life experiences (his education,       deported.
         employment history and family life) have taken
         place in the United States. Unfortunately, in the        Making matters worse, the INS has failed to pursue
         early 1990s, when his mother became terminally           reintegration programs that would address some of
         ill, Mr. D- turned to drugs. Between 1994 and            the concerns related to the release of indefinitely
         1996, he was convicted four times for drug               detained immigrants. Such programs could signifi-
         possession. In 1996, Mr. D- also pled guilty to          cantly mitigate any risk of danger to the community
         petty theft. As a result, the INS placed Mr. D- in       or of flight. They also cost far less than detention.
         deportation proceedings.                                 Indeed, a refugee resettlement agency in New Orleans
                                                                  has begun to provide this service without any
         Mr. D- completed his criminal sentence in 1998,          government funding.
         but the INS immediately took him into custody.
         Since Mr. B- was classified as an “aggravated
         felon,” he was required to be detained until his
         deportation hearing. At that hearing, in July
         1999, Mr. D- made a claim under the Convention
         Against Torture, arguing that as a virtually assim-
         ilated American he would be subject to torture in
         the former Yugoslavia. At the time, anti-
         American feelings raged there due to the conflict
         in Kosovo. An IJ granted the application.
         Unfortunately for Mr. D-, while persons convicted
         of crimes who receive relief under the Convention
         Against Torture cannot be deported, neither are
         they necessarily eligible to be released from INS

         Mr. D- applied for release, but the INS rejected         Photo Courtesy: INS
         his request. This denial particularly hurt Mr. D-’s
         family, since he had been the principal source of            An Alternative to Indefinite Detention
         financial support for his two children. In addition,         and to the Detention of Asylum-Seekers
         his father suffered a stroke and paralysis on the
         right side of his body during Mr. D-’s detention.
                                                                      In September 1998, Human Rights Watch
         Mr. D-’s absence during this critical illness was
                                                                      published a stinging report on the mistreatment
         keenly felt. Eventually, in February 2000, seven
                                                                      of immigrants placed by the INS in local jails.126
         months after he was granted deferral of removal,
                                                                      The report highlighted the particular problems
         Mr. D- was finally released.
                                                                      faced by immigrants in Louisiana parish jails. In
     As its stands, an indefinite detainee seeking to be              response to the report, in October 1998,
     released must prove by clear and convincing evidence             community based organizations in Louisiana
     that he or she is not a threat to society.123 In practice,       established a working group to advocate for the
     this can be an impossible burden to meet, since INS              just treatment of INS detainees. Participants have
                                                                      included the President of the Louisiana Hispanic
     officials often treat past criminality (a condition the
                                                                      Chamber of Commerce, the State Coordinator for
     detainee cannot change) as non-rebuttable evidence
                                                                      the American Immigration Lawyers Association,
     that he or she will be a danger in the future. In                the State Refugee Coordinator, the Executive
     California, a federal district court appropriately               Director of the Hispanic Apostolate, represen-
     reversed this burden, holding that the INS must                  tatives from Loyola University Law School and
     demonstrate by clear and convincing evidence that a              the Twomey Center for Peace and Justice,
     detainee poses a threat to the community or a flight             Amnesty International, Mary Queen of Vietnam
     risk in order to continue detaining the individual.124 In        Church, and Catholic Charities of New Orleans.
     fact, numerous courts have found indefinite detention,
     particularly for long-term permanent residents, to be            The group has met, on a quarterly basis, with the
     unconstitutional on due process grounds.125 However,             local INS district director and local prison officials
     it should not take a law suit to release an indefinitely         to discuss concerns regarding INS detainees at the
     detained immigrant. There should be a fixed ceiling              New Orleans Parish Prison. As a result of this
                                                                      dialogue, in August 1999, the INS agreed to

release certain indefinite detainees to Catholic           documents for his deportation to Nigeria, he
Charities of New Orleans.                                  spent seven years in six different INS detention
To qualify for release, an indefinite detainee must
have a sponsor. If no family member can be                 Finally, in September 1999, the INS released Mr.
identified, the INS determines whether it would            R- to Catholic Charities. He spent his first two
be appropriate to release the detainee to a                weeks in a homeless shelter until Catholic
halfway house. If space is not available, the INS          Charities found him an affordable hotel. Catholic
contacts Catholic Charities of New Orleans which           Charities assisted Mr. R- with his housing
schedules an appointment to interview and                  expenses until October 1999, when he secured a
screen the detainee. The agency reviews the                full time job as a steward at a local hotel. Three
detainee’s criminal background, and explains its           and a half months after his release, Mr. R- moved
services and expectations. Once a decision has             into his own apartment. His family has relocated
been made to accept a detainee, the INS and                from Texas to rejoin him, and his wife is currently
Catholic Charities coordinate a release date.              pregnant with their second child. Mr. R- recently
                                                           enrolled in a program to study management at
Catholic Charities arranges for housing prior to           the hotel.
the detainee’s release. It then picks up the
immigrant and gives him an orientation to the              Since May 1999, the INS has also released 18
program and to the community. Due to a lack of             asylum-seekers to the Catholic Charities program.
funding for the program, Catholic Charities                Former Catholic Charities clients have acted as
initially housed participants in shelters for the          sponsors for some of these persons, providing
homeless until they could afford their own                 them with housing and even helping them to find
apartments. Subsequently, Catholic Charities               employment. Two of the 18 asylum-seekers were
was able to rent rooms from the local YMCA for             granted asylum prior to their release and referred
program participants. Catholic Charities’ staff            to Catholic Charities for resettlement assistance.
assists the participants in finding employment and
accessing social services.                             Programs for released lifers, like the one run by
                                                       Catholic Charities of New Orleans, should be
Since August 1999, the INS has released 21             expanded nationally and federally funded.
indefinite detainees to this program. Of these,        Unfortunately, the one federally-funded program that
only one has been rearrested. This occurred            existed for released indefinite detainees has been
because he attacked his roommate. Catholic             defunded. This program enjoyed a multi-year track
Charities reported the attack to the INS, who          record of success with one of the INS’s most histor-
then arrested the detainee. Of the 21 indefinite       ically difficult populations, Mariel Cubans. Not
detainees who have been released, all but three        surprisingly, the program cost significantly less to
are employed. The unemployed include two               operate than the continued detention of these immi-
disabled men and one 72-year-old man. The              grants.
program’s coordinator characterizes the former
indefinite detainees as independent and                    Successful Program to Reintegrate
resourceful. Their prior life and work experiences
                                                           Mariel Cubans Defunded
in the United States make their transition into
society a smooth one. In general, Catholic                 From 1987 to 1999, Migration and Refugee
Charities’ staff have found the released “lifers” to       Services (MRS) of the United States Catholic
be among their easiest clients.                            Conference (USCC) administered a successful
                                                           program to reintegrate and resettle “Mariel”
The program recently helped Mr. R-, a Nigerian             Cubans who had been released from
national, to re-establish himself after seven years        confinement. Prior to admitting detainees into
in INS detention. Mr. R- came to the United                the program, MRS verified housing arrangements
States in 1986. Although married to a U.S.                 for them and, as necessary, determined the suit-
citizen and the father of a nine-year-old U.S.             ability of these arrangements through home
citizen child, Mr. R- never became a permanent             studies. The program carefully reviewed all the
resident. In 1989, he was convicted of                     information available about potential participants,
possession and delivery of a controlled substance.         including psychiatric and psychosocial evalu-
After serving seven months of a seven year                 ations, and criminal justice history. It did not
sentence, he was transferred to INS custody.               accept persons with excessively violent or sex-
Because the INS could not secure travel                    related criminal histories.

       REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                          27
         Participants received a range of intensive services    gation and there may be other factors particular to the
         that included: individualized, goal-driven             individual such as the likelihood of absconding and
         planning; orientation and reception into the           lack of co-operation, which may justify detention for a
         community; orientation of the sponsor (normally        period. Without such factors detention may be
         family members); follow-up with employers;             considered arbitrary, even if entry was illegal….”131
         weekly monitoring meetings; substance abuse            Such statements by the Committee should be taken as
         and other counseling; and assistance with voca-
                                                                evidence that the United States may be violating both
         tional school enrollment. The program could and
                                                                Article 9 and its customary law obligations.132
         did recommend parole revocation for clients who
         violated the conditions of their parole, failed to
         meet the program’s requirements, engaged in
         illegal activity, or otherwise posed a threat to the
         community. This feature significantly reduced the
         potential risk of recidivism by participants.

         In its final years, the program served an average
         of 50 to 60 Cubans a year, with a success rate of
         roughly 75 percent. Not surprisingly, the
         program cost significantly less than detention. Its
         success argued for expansion to other popu-
         lations. Yet, in July 1999, the program was
         suspended on the grounds that the INS could
         meet the needs of released detainees through
         contracts with half-way houses. In fact, INS
         “indefinite detainees” approved for release often
         remain detained for months or even years while
         they wait for openings in half-way houses.127
         Nor do half-way houses offer programs tailored
         to the unique needs of these populations.
                                                                Photo Courtesy: INS
     Beyond the hardship it causes, indefinite detention
     may also violate the international obligations of the
     United States. In 1992, for example, the United
                                                                2. Mandatory Detention
     States became a party to the United Nations’               In theory, mandatory detention serves as a tool to
     International Covenant on Civil and Political Rights       prevent immigrants from absconding or endangering
     (ICCPR), a document that many legal scholars assert        society. In practice, it has stripped the INS and IJs of
     has risen in its entirety to the level of “customary”      the discretion to consider the particular circumstances
     international law.128 As such, it may have the force       of the detainee and his or her family. Under the 1996
     of being binding even on countries that have not           Immigration Act, for example, IJs cannot release a
     ratified it. Article 9 of the ICCPR provides that “[n]o    detainee in order to allow him or her to support a U.S.
     one shall be subject to arbitrary arrest or detention.”    citizen spouse or child, even if the detainee has been
     The current practice of detaining “lifers” indefinitely,   rehabilitated. The law incorrectly assumes that all
     without binding regulations or laws regarding              people with criminal convictions are a danger to
     standards for release, could be considered arbitrary       society and, as a result, forces the INS to detain many
     under international standards.                             who pose no threat. In effect, the law formalizes
                                                                what has long been the practice of many INS district
     The United Nations’ Human Rights Committee, which
                                                                directors to deny release based on the detainee’s past
     exists to monitor compliance with the ICCPR, has
                                                                criminality, whatever the factors favoring release.133
     explicitly stated that immigration control is covered by
     Article 9.129 Under U.S. law, this interpretation may      The law now requires the INS to arrest and detain
     be viewed as authoritative, perhaps even binding.130       almost all non-citizens with criminal convictions,
     The Committee has also recently ruled that the             regardless of when the conviction occurred. It also
     detention of a Cambodian in Australia for more than        does not take into account how long ago the
     four years was “arbitrary,” stating “detention should      immigrant finished his or her jail sentence. After a
     not continue beyond the period for which the State         non-citizen pays his or her debt to society, the INS
     can provide appropriate justification. For example, the    must arrest and detain them, often for periods that
     fact of illegal entry may indicate a need for investi-     exceed their prison sentence.

Immigrants convicted and released from prison before            During the first two months of his detention, Mr.
October 9, 1998 are eligible to request release from            B-’s daughter drove his wife two hours to visit
INS detention.134 All non-citizens released from jail or        him and to attend his court hearings. In order to
prison on or after October 9, 1998, however, are inel-          make these weekly trips, Mr. B-’s daughter had to
igible for bond. They must be detained throughout               miss several days of work. As a result, the
their immigration proceedings, which can drag on for            daughter, who is married and has two children,
                                                                lost her job in October 1998. She remained
months and even years.
                                                                unemployed for four months. During this time,
Mandatory detention tears families apart. Permanent             the family’s financial responsibilities fell solely on
residents who have lived in the United States for years         her husband who could not find full-time work.
languish in detention, apart from their families, while
their cases pass through the immigration court system.          While detained, Mr. B- missed the birthdays of
Exacerbating matters, the INS can detain foreign                five of his six U.S. citizen grandchildren, as well as
                                                                Thanksgiving and Christmas with his family. In
nationals in any location it chooses. Accordingly, if it
                                                                addition, Mr. B- suffered severe pain from
arrests a non-citizen in Florida, it can transfer that
                                                                arthritis. He had previously undergone two oper-
person to Louisiana, regardless of the fact that his or         ations: one to insert a piece of metal to connect
her family is in Florida. As a result, the immigrant will       his hip to his leg; the other to treat his severe
be effectively denied visitation by his or her family,          carpal tunnel syndrome. Although Mr. B- posed
who cannot afford to make the trip from Florida to              no threat to anyone, had not been convicted of a
Louisiana. Separation from loved ones can lead to               violent crime, and had completed his probation,
depression, anxiety, and loneliness for the detainee, as        the INS did not release him until early 1999, and
well as for his or her family. It can also lead to the          only then as the result of his medical condition.
family’s impoverishment.                                        In April 1999, the INS withdrew its appeal and
                                                                Mr. B-’s case was closed.
    Nonviolent Detainee Separated From                      Mandatory detention forces the INS to arrest and
    Family                                                  detain petty offenders who represent neither a threat
                                                            to their communities or flight risks.
    “Mr. B-,” a 59-year-old from Mexico, has lived in
    the United States as a permanent resident for
    more than 33 years. He has a permanent
                                                                Mandatory Detention Fills INS Detention
    resident wife, an adopted U.S. citizen son, two             System with Nonviolent People
    U.S. citizen daughters, and six U.S. citizen grand-
                                                                “Mr. F-” is a 29-year-old from Sudan. In 1993,
    children. In 1994, Mr. B- was convicted of failing
                                                                he came to the United States as a refugee. His
    to prevent a felony, in this case the distribution of
                                                                father held a prominent position in a political
    less than 50 kilograms of marijuana. The judge
                                                                group that opposed the government in Sudan;
    sentenced him to three years of probation, but
                                                                Mr. F- was in danger of persecution because of
    did not consider the crime serious enough to
                                                                his father’s activities. After resettling in
    sentence him to prison time.
                                                                Tennessee, Mr. F- worked steadily as a laborer in
                                                                warehouses. He filed tax returns each year.
    In 1998, while Mr. B- was returning to the United
                                                                Almost three years after his arrival, Mr. F- was
    States from a visit abroad, the INS discovered his
                                                                convicted of simple possession of crack cocaine
    1994 conviction. He was allowed to enter the
                                                                and sentenced to probation. In early 1998, the
    country as a parolee, but after a check of his
                                                                INS placed him in removal proceedings for having
    records, the INS terminated Mr. B-’s parole and
                                                                violated a controlled substance law. Although
    instituted removal proceedings against him. The
                                                                Mr. F- was not a danger, the INS detained him in
    agency charged Mr. B- with conspiring with
                                                                rural Louisiana throughout the proceedings. In
    others to traffic in a controlled substance and
                                                                September 1999, the BIA granted Mr. F- with-
    attempted to remove him from the United States.
                                                                holding of removal, but the INS did not release
    Ultimately, the IJ terminated proceedings against
                                                                him until December 1999. In total, he spent 21
    him, finding that his prior conviction did not
                                                                months in custody.
    make him an illicit drug trafficker under the law.
    However, the INS appealed the decision. As a
    result of mandatory detention, Mr. B remained
    detained throughout the pendency of his case,
    five months in total.

            REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                             29
         No Jail Time, but More Than a Year in                  so counter-intuitive and expansive a reading of this
         INS Detention                                          law apparently surprised federal jurists, who consis-
                                                                tently rejected the INS’s position.136 In response to
         “Mr. G-”, a 26-year-old Tanzanian, fled his            more than a dozen adverse decisions by federal
         homeland after finding his father, a prominent         courts, the INS reversed course in July 1999, reading
         member of an opposition political movement,            “mandatory detention” to apply only to those
         brutally murdered by the government. After his         released from criminal custody on or after October 9,
         father’s death, his mother went into hiding; Mr.       1998.137 Up to that point, it had wasted its scarce
         G- has not heard from her since. A relative
                                                                detention resources on hundreds of immigrants it did
         helped Mr. G- escape the country on a student
                                                                not need to detain.
         visa and he arrived in the United States in January
         1998. Unfortunately, after he resettled in             In addition, the INS has failed to pursue alternative
         Maryland, his relatives in Tanzania encountered        forms of detention that have proven to be effective in
         financial difficulties and could no longer afford to   the criminal justice system. “Mandatory detention,”
         pay his tuition. Desperate for tuition money, he       for example, need not preclude a rigorous system of
         accepted the offer of two men to open a bank
                                                                home detention through electronic monitoring. Not
         account and deposit phony checks for them. He
                                                                only would expanded use of such a system be cost-
         knew his actions were wrong, but believed they
         would earn him enough money to cover his               effective, it would be a humane alternative for
         college tuition and comply with his student visa.      non-citizens who enjoy strong family ties in the United
         Instead, he was arrested. Mr. G- was convicted         States, while accomplishing the same goals as “hard”
         of attempted theft of less than $300 and received      detention.
         a one year suspended sentence and 11 months of
                                                                Although not a direct analogy to “civil” confinement,
         probation. After his conviction in December
                                                                the federal pre-trial release program has enjoyed
         1998, the INS arrested Mr. G- and placed him in
         detention. He applied for withholding of removal       significant success in assuring court appearances and
         and relief from removal under the Convention           protecting the community. These are the same goals
         Against Torture. His case is currently on appeal.      served by immigration detention. In FY 1998, only
         To date, he has been in INS detention for more         4.5 percent of criminal defendants, who had been
         than one year.                                         conditionally released under this program, failed to
                                                                appear for their trials.138 Only one percent
     Mandatory detention straight-jackets the INS,
                                                                committed a violation while released.139 The
     precluding it from making common-sense decisions on
                                                                Department of Justice (“DOJ”) defines “conditional
     the best use of its scarce detention space. It has
                                                                release” as “any combination of restrictions that are
     contributed mightily to the crisis in the INS detention
                                                                deemed necessary to guarantee the defendant’s
     system. At the same time, the INS has failed to
                                                                appearance at trial or the safety of the
     manage the new mandatory detention regime in a
                                                                community.”140 Thus, as DOJ officials have informed
     way that minimizes its damage.
                                                                CLINIC, “conditional release” could include home
     Under the law, “mandatory detention” for those             detention. In fact, at least one federal court has made
     facing removal on criminal and national security           this connection, ordering the INS to transfer a
     grounds takes place “when the alien is released,           “mandatory detainee” into the tethering program of
     without regard to whether the alien is released on         U.S. Pretrial Services.141 In effect, the court found
     parole, supervised release, or probation, and without      that “home detention” satisfied the mandates of
     regard to whether the alien may be arrested or             immigration detention. Unfortunately, the INS has
     imprisoned again for the same offense.”135 By its          failed to pursue successful alternative forms of
     plain language, this provision would seem to apply         detention, despite unprecedented pressure on its
     only to persons released from criminal custody on or       struggling system.
     after October 9, 1998, when this provision went into
     effect. Instead, the INS initially interpreted the
     “released” language, triggering mandatory detention,
     to refer to INS custody. Under this interpretation,
     immigrants picked up by the INS on or after October
     9, 1998, even if they had long before been released
     from criminal custody, would have been subject to
     mandatory detention. The fact that the INS advanced

                                                               federal judges. To begin such a proceeding, the INS
                                                               must first submit an application that establishes
                                                               probable cause that an individual is an “alien terrorist”
                                                               and that the use of the normal removal proceedings
                                                               would pose a risk to national security. The individual
                                                               is entitled only to an unclassified “summary” of the
                                                               secret evidence. Even if such a summary is not
                                                               provided, however, the proceedings can still go
                                                               forward, and the person will be forced to present a
                                                               defense without knowledge of the INS’s case.
                                                               The INS detains all non-citizens who are subject to
                                                               these provisions. As of this writing, more than 20
                                                               immigrants, mostly of Middle-Eastern descent, are
                                                               facing deportation on the basis of secret evidence.147
Photo Courtesy: INS
                                                                   Jailed for 19 Months on Ex-Wife’s
3. Detention Based on Secret                                       Undisclosed Allegations
   Evidence                                                        Hany Kiareldeen, a 31-year-old Palestinian, was
                                                                   detained for 19 months without being charged
It is a bedrock principle of our constitutional
                                                                   with any crime. Rather, he was charged with
democracy that persons accused of a crime must be
                                                                   being “removable” on the basis of secret
afforded the opportunity to examine and explain the                evidence. Mr. Kiareldeen was arrested on March
evidence against them. Under our criminal justice                  26, 1998 for overstaying his visitor’s visa. He had
system, it would be unthinkable to arrest, convict, and            married a U.S. citizen who had petitioned for him
imprison a person based on secret evidence. Yet, our               to become a permanent resident. Ordinarily this
immigration laws provide for the removal and                       filing would have allowed Mr. Kiareldeen to live
“administrative” detention of non-citizens —                       and work in the United States during the many
sanctions which can be every bit as severe as a                    years that such applications can take to process.
criminal sentence — based precisely on such evidence.              Mr. Kiareldeen was employed as a manager of an
                                                                   electronics store. However, the INS detained him
As it stands, an immigrant may be excluded from                    based on allegations by his ex-wife that in 1993
admission to the United States on national security                he hosted a meeting at his home in Nutley, New
grounds if the INS or a consular officer has “reason to            Jersey, which was attended by one of the World
believe” that he or she intends to engage in                       Trade Center bombing co-conspirators. Several
espionage or sabotage, has engaged in terrorist                    acquaintances, however, testified that Mr.
activity or intends to engage in terrorist activity.142            Kiareldeen was apolitical.
Immigrants “suspected” of being inadmissible for
espionage activities, terrorist activities, or other foreign       In Mr. Kiareldeen’s case, the INS refused to
                                                                   produce witnesses to support its allegations of
policy considerations can also be excluded.143
                                                                   terrorism, even when ordered to do so by the IJ.
The law also allows the INS to remove an individual                Upon reviewing the summary of the evidence,
from the United States based on secret evidence. In                the federal district court found it “lacking in
general, persons in removal proceedings must be                    either detail or attribution to reliable sources
given a “reasonable opportunity to examine                         which would shore up its credibility. More
evidence” submitted by the INS. This right, however,               important however, is the apparent conclusion
                                                                   that even the government does not find its own
does not entitle them to examine “national security
                                                                   allegations sufficiently serious to commence
information.”144 Once an individual is found to be
                                                                   criminal proceedings.”148
“removable,” the INS may use classified evidence to
deny his or her application to remain in the United                Ultimately, in April 1999, an IJ who reviewed the
States.145                                                         secret evidence concluded that Mr. Kiareldeen did
Finally, the laws allow for the use of an “Alien                   not live in Nutley at the time, and that the
Terrorist Removal Court” to remove suspected                       government had not shown that he was inad-
                                                                   missible on national security grounds. The INS
terrorists from the United States through the use of
                                                                   appealed and the BIA affirmed the IJ’s decision.
secret evidence.”146 The court is comprised of five

             REPORT            4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                             31
       In October 1999, a federal court ordered the INS         the judge found that Mr. Najjar had been subject
       to release Mr. Kiareldeen. He was finally released       to an “unfair” and “tainted” process, she
       from detention on October 25, 1999.149                   declined to order Mr. Najjar released on bond.154
                                                                His next bond hearing is scheduled for late
       Arrested at Mosque - Three Years in                      August, 2000.155
                                                            Although federal courts have increasingly found the
       Nasser Ahmed, an Egyptian immigrant, spent           use of secret evidence unconstitutional,156 and there
       more than three years in INS detention based on      are efforts in Congress to pass legislation that would
       secret evidence. For most of that time he was in     repeal the law,157 this is scant comfort to the people
       solitary confinement. Mr. Ahmed, a devout            who remain detained and to their families who
       Muslim, was arrested at his mosque in April          struggle in their absence.
       1996. The only evidence against him that the
       INS disclosed was a one-sentence statement that
       he belonged to an unnamed terrorist organi-
       zation. His attorneys could not defend him
       against such a vague allegation and Mr. Ahmed
       was ordered deported.

       When the attorneys filed a federal lawsuit, the
       INS was forced to turn over some of its secret
       evidence. The INS alleged that Mr. Ahmed had
       sent a message to the international press from
       Sheik Rahman, who was convicted of conspiring
       to commit acts of terrorism in the United States.
       His attorneys demonstrated that there was no
       evidence Mr. Ahmed ever transmitted such a
       message.150 Mr. Ahmed was released on a bond
       in November 1999, but he said that he “still ha[s]
       no idea who accused [him] or why they accused
       [him].” Although he had worked as an electrical
       engineer before he was detained, he lost his job
       and will have to find new employment.151 The
       INS is still seeking to deport him. Mr. Ahmed is
       married and has three children.

       Teacher Separated from Wife and
       Daughters for Three Years
       Mazen Al-Najjar, a Palestinian, is married and has
       three U.S. citizen daughters. He worked as a
       teacher and translator in Florida for 18 years
       before the INS detained him based on secret
       evidence. His attorneys believe that the secret      Photo Courtesy: Alan Pogue
       evidence showed that he worked at the same
       university think-tank as prominent supporters of
       the Palestinian cause. His wife has suffered
                                                            C. CONCLUSION
       greatly during this time, and his daughters are      The legislation imposing mandatory detention has
       growing up without him.152 The children must         caused immense — and unnecessary — suffering. But
       talk to their father through glass; they cannot      even in those areas where the INS retains the
       touch him. The family has no money and is            discretion to release individuals, it has failed to do so
       being supported by Mr. Najjar’s sister and           in a consistent or generous manner. It has been
       brother-in-law. Mr. Najjar’s wife is ashamed to      particularly remiss in its failure to explore alternatives
       tell co-workers where her husband has been for
                                                            to detention for vulnerable detainees and others who,
       almost three years, and she worries that the FBI
                                                            particularly with appropriate supervision, would
       will get her fired from her job.153 In late May,
                                                            represent neither a flight risk or a danger to the
       2000, a U.S. District Court Judge ruled that Mr.
       Najjar must be given a new hearing. Although         community. It has also failed to explore cost-effective,

alternative forms of detention for those subject to          G   Mandatory detention, which strips from the INS
mandatory detention.                                             and IJs the ability to make custody determinations
                                                                 based on the totality of a person’s situation,
Just as the problems in the INS detention system have            should be eliminated in all but the most egregious
been exhaustively documented, a strong consensus has             criminal and national security cases.
emerged among human rights and immigrant advocacy
groups on the steps necessary to fix the system.             G   The INS should aggressively pursue alternative
                                                                 forms of detention for those subject to
G   The INS detention system, long plagued by the                mandatory detention, including home detention
    inability of INS headquarters to enforce its policies        through electronic monitoring and “tether”
    at the local district level (much less in its contract       programs.
    detention facilities) must be centralized. Strict
    accountability must be established for violations        G   All INS detention facilities — whether INS Service
    of INS detention policies. Release decisions                 Processing Centers, federal prisons, for-profit
    should not be subject to the whims, biases, and              prisons, or local jails — should be subject to the
    idiosyncracies of INS district directors.                    same minimum standards related to conditions of
                                                                 confinement. These standards should be appro-
G   Bona fide asylum-seekers, particularly those who             priate to “civil” detainees, rather than to
    establish a “credible fear” in the expedited                 prisoners serving criminal sentences. The model
    removal process, should not be detained. The                 standards developed by the American Bar
    INS should develop and implement uniform                     Association constitute a good starting point and
    release policies for these cases. It should also             should be uniformly applied.
    develop supervised release and alternative-to-
    detention programs for all asylum-seekers in its         G   The INS should adopt and implement an effective
    custody. If asylum-seekers must be detained at               system of oversight to assure the appropriate
    all, this should only be on a short-term basis in            treatment of detainees it has placed in for-profit
    facilities appropriate to their unique needs and             prisons and local jails. If INS contractors resist
    vulnerabilities. Asylum-seekers should never be              implementation of appropriate standards or
    confined in prisons.                                         rigorous oversight, their facilities should not be
G   Children should never be detained in facilities for
    juvenile offenders and should never be separated         G   Detention based on the use of secret evidence
    from their parents. If necessary to detain them              violates bedrock constitutional principles and
    at all, they should be kept in shelter care facilities       should never occur.
    which offer programs tailored to their unique
    vulnerabilities and developmental needs. The INS         G   The EOIR should follow up on its successful pilot
    should significantly expand its shelter-care                 project and fund “legal rights” presentations for
    facilities for immigrant families and unaccom-               all persons in INS custody. Such presentations
    panied minors. Every unaccompanied minor in                  would benefit detainees, increase the efficiency of
    INS custody should be assigned a “special                    court proceedings, and reduce the burdens on the
    guardian” to shepherd them through the immi-                 INS detention system. “Rights presentations”
    gration process. The “best interests” of the child           would be a humane and cost-effective feature of
    should govern all placement decisions.                       a reformed detention system.

G   The INS should abide by its own gender                   As the population of administrative detainees
    guidelines and avoid detaining women who make            continues to increase, the United States must decide if
    gender-based asylum claims.                              it can afford – economically and morally – to lock up
                                                             persons who could be reunited with families and live
G   The great majority of indefinite detainees should        as productive members of society. At this point, the
    be released within the 90 day statutory removal          need for the system’s reform can scarcely be disputed.
    period. While it may be necessary to detain              For too long, the INS detention system has dishonored
    certain non-citizens beyond 90 days, an absolute         our heritage as a nation of immigrants.
    time limit should be established for the release of
    all detainees. Intensive reintegration and
    supervised release programs, to include parole
    revocation for those failing to meet the programs’
    terms, should be provided for all indefinite

            REPORT           4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                           33
                                            E N D N O T E S
     1.   Amnesty International, “Lost In The Labyrinth: Detention of      10.   Women’s Commission for Refugee Women and Children, “A
          Asylum-Seekers” (July 1999) [hereinafter “Lost in the                  Cry for Help: Chinese Women in INS Detention” (March
          Labyrinth”]; Lawyers Committee for Human Rights,                       1995).
          “Refugees Behind Bars: The Imprisonment of Asylum
                                                                           11.   This seems an obvious point, but one blurred by the
          Seekers in the Wake of the 1996 Immigration Act” (August
                                                                                 language used to describe the INS system For example,
          1999) [hereinafter “Refugees Behind Bars”].
                                                                                 courts view removal proceedings as “civil” in nature, though
     2.   Human Rights Watch, “Slipping through the Cracks:                      their end (banishment to often dangerous countries) and
          Unaccompanied Children Detained by the U.S. Immigration                means (imprisonment) can be every bit as harsh as criminal
          and Naturalization Service” (April 1997) [hereinafter                  sentences. The largest category of detainees, pejoratively
          “Slipping through the Cracks”].                                        labelled “criminal aliens,” encompasses long-term
                                                                                 permanent residents who committed relatively minor trans-
     3.   Women’s Commission for Refugee Women and Children,
                                                                                 gressions, like shop-lifting, and long ago served whatever
          “Liberty Denied: Women Seeking Asylum Imprisoned in the
                                                                                 criminal sentence they may have received. INS “processing”
          United States” (April 1997) [hereinafter “Liberty Denied”].
                                                                                 or “detention” centers connote short-term custody, but hold
     4.   Kerwin, “Throwing Away the Key: Lifers in INS Custody,” 75             thousands of foreign-born persons for indefinite periods of
          Interpreter Releases 649 (May 11, 1998); Morris, “INS                  time, often for years.
          Criminal Alien Review Plan for Nonremovable Detainees,” 3
                                                                           12.   Pub L. No. 104-208, 110 Stat. 3009 (September 30, 1996).
          Benders Immigration Bulletin 1098 (November 1, 1998);
          Harr, “The Mariel Cubans: The Forgotten Lifers,” Migration       13.   INA § 236(c)(1); 8 CFR § 236.1(c).
          World, Vol XXVII, No. 5 (1999).
                                                                           14.   INA § 235(b)(1)(B)(ii)-(iii)(IV); 8 CFR § 235.3(b)(2)(iii) and
     5.   Kerwin and Wheeler, “The Detention Mandates of the 1996                (4)(ii).
          Immigration Act: An Exercise in Overkill,” 75 Interpreter
                                                                           15.   INA § 235(b)(2)(A); 8 CFR § 235.3 (c).
          Releases 1433 (October 19, 1998).
                                                                           16.   INA § 241(a)(1)(C)(2); 8 CFR § 241.3.
     6.   Human Rights Watch, “Locked Away: Immigration
          Detainees in Jails in the United States” (September 1998)        17.   Pub L. No. 104-132, 110 Stat. 1214 (April 24, 1996).
          [hereinafter “Immigration Detainees in Jails”]; Florida
                                                                           18.   Kerwin, Acer, and Leopold, “The Detention of Noncitizens:
          Immigrant Advocacy Center, Inc, “Florida County Jails: INS’s
                                                                                 An Overview of the Law, Its Implementation, and Legal
          Secret Detention World” (November 1997).
                                                                                 Strategies”, 1999-2000 Immigration and Nationality Law
     7.   Kerwin, “Detention: Our Sad National Symbol,” In Defense               Handbook, Volume II, Advanced Practice (American
          of the Alien, Vol XX (1997) at 128-142.                                Immigration Lawyers’ Association 1999) at 34, 35-38.

     8.   Florida Immigrant Advocacy Center, Inc, “Cries for Help:         19.   INA § 101(a)(43).
          Medical Care at Krome Service Processing Center and in
                                                                           20.   US. Committee for Refugees, “World Refugee Survey 2000”
          Florida’s County Jails” (December 1999) [hereinafter
                                                                                 (2000) at 2-4.
          “Medical Care at Krome Service Processing Center and in
          Florida’s County Jails”].                                        21.   United Nations’ Convention relating to the Status of
                                                                                 Refugees, opened for signature July 28, 1951, 19 U.S.T.
     9.   Florida Immigrant Advocacy Center, Inc, “Krome’s Invisible
                                                                                 6259, 189 U.N.T.S. 137; United Nations Protocol Relating to
          Prisoners: Cycles of Abuse and Neglect” (July 1996);
                                                                                 the Status of Refugees, opened for signature January 31,
          Immigration and Naturalization Service Assessment Team,
                                                                                 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
          “The Elizabeth, New Jersey Contract Detention Facility
          Operated by ESMOR, Inc.,” (Interim Report) (July 1995)           22.   Pub L. No. 96-212, 94 Stat. 103 (1980).
          [hereinafter “The Elizabeth, New Jersey Contract Detention
                                                                           23.   Opened for signature Feb 4, 1985, S. TREATY DOC. NO.
          Facility”]; American Civil Liberties Union, “Justice Detained:
                                                                                 100-20 (1988), 1465 U.N.T.S. 85.
          Conditions at the Varick Street Immigration Detention
          Center” (1993) [hereinafter “the Varick Street Immigration       24.   The 1996 Immigration Act, § 604 (1996).
          Detention Center”].                                              25.   Id.

26.   8 CFR § 208.4(a)(5) (1997).                                     40.   Root, National Director, Appearance Assistance Program,
                                                                            Vera Institute for Justice, “The Appearance Assistance
27.   Musalo, Gibson, Fingert, and Taylor, “Expedited Removal
                                                                            Program: An Alternative to Detention for Noncitizens in U.S.
      Study: Report on the First Three Years of Implementation of
                                                                            Immigration Removal Proceedings,” presentation at the 8th
      Expedited Removal” (May 2000), Analysis of INS Office of
                                                                            Migration Policy Forum (May 3, 2000).
      Policy and Planning Data as of 11/24/99, Tables 1-26.
                                                                      41.   Id.
28.   Id.
                                                                      42.   Id.
29.   Musalo, Anker, and Taylor, “The Expedited Removal Study:
      Report on the First Year of Implementation,” 75 Interpreter     43.   Id.
      Releases 973, 974 (July 17, 1998).
                                                                      44.   “The Varick Street Immigration Detention Center” at 15-16.
30.   Federal Document Clearing House, Political Transcript
                                                                      45.   Interview with Natalie Audage, Asylum Network
      (February 1, 2000).
                                                                            Coordinator, Physicians for Human Rights (January, 2000).
31.   Id.
                                                                      46.   “Lost in the Labyrinth” at 51.
32.   Two asylum seekers recently filed a federal civil rights
                                                                      47.   McChesney, “The Mother Teresa of Immigration
      lawsuit alleging that they suffered beatings and other
                                                                            Detention,” America Magazine (April 24, 1999).
      inhumane treatment at the Elizabeth, New Jersey detention
      center. The abuse included beatings, being chained to a bed     48.   Associated Press, “New York INS Detention Site Accused of
      in a small cell for hours with no water, and isolation in an          Safety Violations” (February 24, 2000).
      unsanitary cell which “had its walls, floor, and doorway
                                                                      49.   Memorandum from Michael A Pearson, INS Executive
      smeared with human feces and urine.” See, Llorente,
                                                                            Associate Commissioner, Office of Field Operations, to INS
      “Asylum Seekers Sue Elizabeth Jailers,” Bergen Record
                                                                            Regional Directors, “INS Detention Guidelines” (October 7,
      (February 25, 2000). See also, Llorente, “Asylum Seekers
      Live in Jail-Like Conditions,” Bergen Record (April 11,
      1999); Viglucci, “Inside Krome: Ending years of abuses is a     50.   INA § 212(d)(5)(A)
      daunting task,” Miami Herald (February 28, 1999).
                                                                      51.   See, Wheeler and McClenahan, “CLINIC Report #5 on
33.   Articles 31 and 26 respectively, Vienna Convention on the             Credible Fear/Expedited Removal,” 3 Bender’s Immigration
      Law of Treaties, Nov. 1, 1969, 1155 U.N.T.S. 331. [here-              Bulletin 417 (May 1, 1998); Wheeler and McClenahan,
      inafter Vienna Convention]. The United States has not                 “CLINIC Reports on Implementation of Expedited Removal
      ratified this convention, but the concepts described in these         and Credible Fear Screening Process,” 2 Bender’s
      two clauses have long been asserted by scholars as rising to          Immigration Bulletin 949 (November 15, 1997); Wheeler
      the level of customary international law.                             and Morris, “The Credible Fear/Expedited Removal
                                                                            Process,” 2 Bender’s Immigration Bulletin 627 (August
34.   United Nations’ Universal Declaration of Human Rights,
                                                                            1997); Wheeler, “INS’s Implementation of Expedited
      Article 14(1), GA. Res. 217A(III), U.N. GAOR, 3d. Sess., at
                                                                            Removal: The Credible Fear Interview Process,” 2 Bender’s
      71, U.N. Doc. A/810 (1948).
                                                                            Immigration Bulletin 487 (June 15, 1997).
35.   UNHCR Guidelines on Detention of Asylum Seekers (1995);
                                                                      52.   Kerwin and Wheeler, “The Detention Mandates of the 1996
      “Detention Of Asylum Seekers And Refugees: The
                                                                            Immigration Act: An Exercise in Overkill,” 75 Interpreter
      Framework, The Problem And Recommended Practice,”
                                                                            Releases 1433, 1439 (October 19, 1998).
      Executive Committee, Standing Committee, United Nations
      High Commissioner for Refugees, 15th Meeting, UN. Doc.          53.   Id.
      EC/49/SC/CRP.13 (1999).
                                                                      54.   Id.
36.   Id. at ¶ 1.
                                                                      55.   At a March 30, 2000 INS liaison meeting, the New Jersey
37.   I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (expressing            district director reported that in FY 1999, there were 995
      deference to UNHCR’s interpretations of the Refugee                   detained cases at the Elizabeth Detention Center. The
      Convention.).                                                         district director clarified that the vast majority were asylum-
                                                                            seekers arriving at airports without proper documents, who
38.   See, eg., “Lost in the Labyrinth.”
                                                                            had passed their credible fear interviews. Of these, 90 were
39.   The Vera Institute of Justice, “The Appearance Assistance             granted parole for a release rate of approximately nine
      Program: Attaining Compliance with Immigration Laws                   percent in 1999.
      Through Community Supervision (1998).

              REPORT               4       ❘      THE NEEDLESS DETENTION OF IMMIGRANTS                                                        35
     56.    Id; At a June 16, 1999 liaison meeting, the New York INS        76.   See generally, “The Elizabeth, New Jersey Contract
            district provided statistics that indicated that, since the           Detention Facility”; “Immigration Detainees in Jails” at 60-
            Queens Wackenhut detention facility had opened, 285 of                63.
            the 1054 asylum seekers (27 percent) determined to have a
                                                                            77.   “The Elizabeth, New Jersey Contract Detention Facility” at
            credible fear had been paroled by the the district office.
                                                                                  15; “The Varick Street Immigration Detention Center” at
     57.    “Lost in the Labyrinth” at 25.                                        13-14; Florida Immigrant Advocacy Center, Inc., “Krome
                                                                                  North Service Processing Center: Update on Conditions
     58.    Id.
                                                                                  (Draft)” (March 1996) at 12-14; Viglucci, “Investigation at
     59.    Statistics provided by the Executive Office for Immigration           Krome: Officer Accused of Using Stun Gun,” Miami Herald
            Review (December 13, 1999).                                           (May 5, 1997); “Liberty Denied” at 15-17.

     60.    INA § 292; 8 USC § 1362.                                        78.   The Associated Press, “Jury Convicts One Jail Guard,
                                                                                  Acquits Another in Detainee Abuse,” (April 28, 1998);
     61.    INS Office of General Counsel, “Funding of a Pilot Project
                                                                                  Smothers, “Three Jail Guards Guilty of Abusing
            for the Representation of Aliens in Immigration
                                                                                  Immigrants,” New York Times (March 7, 1998).
            Proceedings” (December 21, 1995). [hereinafter “No Cost
            to the Government Memorandum”].                                 79.   Smothers, “Immigrants Tell of Mistreatment by New Jersey
                                                                                  Jail Guards,” New York Times (February 6, 1998).
     62.    5 USC § 3106 (1996).
                                                                            80.   “The Elizabeth, New Jersey Contract Detention Facility” at 5.
     63.    “No Cost to the Government Memorandum”
                                                                            81.   Id. at 6. See also, “Liberty Denied” at 15 (“Detainees
     64.    Id.
                                                                                  reported physical and verbal abuse, frequent strip searches,
     65.    Hinken, Program Analysis Staff, Executive Office for                  and excessive use of prolonged isolation, as punishment for
            Immigration Review, “Evaluation of the Rights                         minor infractions.”)
            Presentations” (December 1999).
                                                                            82.   “Immigration Detainees in Jails” at 61-63.
     66.    According to the EOIR, in FY 99 53 percent of all immi-
                                                                            83.   8 CFR § 208.6.
            gration court cases were unrepresented at the time of
            completion. Statistics available at                             84.   8 CFR § 236.1(e).
                                                                            85.   Mr. B- requests that his country of origin not be printed. It
     67.    “The Florence Project Report,” Florence Immigrant and                 is not one of the countries whose consulates the United
            Refugee Rights Project, Vol 3, Issue 1 (February 2000) at 1.          States is required to notify pursuant to 8 CFR § 236.1(e).

     68 .   INA § 240(b)(2)(A)(iii).                                        86.   See the UNHCR’s website at
     69.    “Medical Care at Krome Service Processing Center and in
            Florida’s County Jails”; “Lost in the Labyrinth” at 64;         87.   Ms. Kassindja’s story is poignantly told in Kassindja, “Do
            “Immigration Detainees in Jails” at 56-63; “Liberty Denied”           They Hear you When you Cry?” (Delacorte Press 1998).
            at 19-23; “The Elizabeth, New Jersey Contract Detention
                                                                            88.   Matter of Kasinga, 21 I & N Dec. 357 (BIA 1996).
            Facility” at 21-24; “The Varick Street Immigration Detention
            Center” at 44-48.                                               89.   Abankwah v. INS, 185 F.3d 18 (2nd Cir. 1999).

     70.    “Immigration Detainees in Jails” at 56.                         90.   Gilbert, “Family Violence and the Immigration and
                                                                                  Nationality Act,” Immigration Briefings (March 1998) at 15.
     71.    Id.
                                                                            91.   United Nations High Commissioner for Refugees, Handbook
     72.    Letter from Bill Lann Lee, Acting Assistant Attorney General,
                                                                                  on Procedures and Criteria for Determining Refugee Status
            Civil Rights Division, to Mr. J. Milton Pittman, Chair of the
                                                                                  under the 1951 Convention and the 1967 Protocol Relating
            Board of County Commissioners, Jackson County, Florida
                                                                                  to the Status of Refugees, paragraph 65 (1988).
            (March 30, 2000).
                                                                            92.   Canadian Immigration and Refugee Board, “Guidelines on
     73.    “Lost in the Labyrinth” at 64.
                                                                                  Women Refugee Claimants Fearing Gender-Related
     74.    Id.                                                                   Persecution” (March 9, 1993).

     75.    Viglucci, “Immigration Law Packs Detainees into Krome,”         93.   Immigration and Naturalization Service, “Considerations for
            Miami Herald (October 17, 1999).                                      Asylum Officers Adjudicating Asylum Claims From Women”
                                                                                  (May 26, 1995).

94.    Matter of R-A-, Int Dec. 3403 (BIA 1999).                           113.   Kerwin, “Throwing Away the Key: Lifers in INS Custody,”
                                                                                  75 Interpreter Releases 649 (May 11, 1998); Harr, “The
95.    Immigration and Naturalization Service, “Guidelines for
                                                                                  Mariel Cubans: The Forgotten Lifers,” Migration World, Vol.
       Children’s Asylum Claims” (December 10, 1998).
                                                                                  XXVII, No. 5 (1999).
96.    Loose, “Most ‘Unaccompanied Minors’ Quickly Sent Back,”
                                                                           114.   Immigration and Naturalization Service, “Mariel Cuban
       Washington Post (February 3, 2000).
                                                                                  Custody Report” (August 6, 1999).
97.    Solomon, “Immigrant Minors,” Village Voice (February 1,
                                                                           115.   “Coven Statement.”
                                                                           116.   INA § 240(a).
98.    Gonzalez, “2 Illegal Minors, 2 Tales,” Arizona Republic
       (March 30, 2000).                                                   117.   INA § 241(a)(3).

99.    Human Rights Watch, “United States: Detained and                    118.   8 CFR § 2414(a) (1999).
       Deprived of Rights: Children in the Custody of the U.S.
                                                                           119.   Under the Cuban Refugee Adjustment Act, Pub L. No. 89-
       Immigration and Naturalization Service” (December 1998)
                                                                                  732, a national of Cuba can apply for permanent residence
       at 3.
                                                                                  in the United States one year after being inspected,
100.   UNHCR Guidelines on Policies and Procedures in dealing                     admitted or paroled.
       with Unaccompanied Children Seeking Asylum (1997).
                                                                           120.   Memorandum from Michael A Pearson, Executive Associate
101.   Id. at ¶ 5.7.                                                              Commissioner, Office of Field Operations, Immigration and
                                                                                  Naturalization Service, to all Regional Directors, District
102.   “Detention Of Asylum Seekers And Refugees: The
                                                                                  Directors, and Officers-in-Charge, “Interim Changes and
       Framework, The Problem And Recommended Practice,”
                                                                                  Instructions for Conduct of Post-Order Custody Reviews,”
       Executive Committee, Standing Committee, United Nations
                                                                                  HQOPS 50/14.6-C (August 6, 1999). See also Immigration
       High Commissioner for Refugees, 15th Meeting, UN. Doc.
                                                                                  and Naturalization Service, “Instructions for Post-Order
       EC/49/SC/CRP.13 (1999) at 26i.
                                                                                  Custody Review — Implementing Interim Changes and
103.   See generally, Pinkerton, “Children Crossing Border Alone,”                Instructions for Conduct of Post Order Custody Review”
       Houston Chronicle (February 1, 2000).                                      (October 18, 1999).

104.   Pinkerton, “Kids held by INS trapped in limbo between 2             121.   Letter from James J. Haggerty, Esq., CLINIC, to Kenneth
       worlds,” Houston Chronicle (February 6, 2000).                             Elwood, INS Associate Commissioner for Enforcement, (June
                                                                                  21, 2000).
105.   Sullivan, “Jailed refugee girl in eye of political, legal storm,”
       The Oregonian (December 11,1999); Sullivan, “A Teenage              122.   65 Fed Reg. 40540 (June 30, 2000).
       Refugee from China talks to the Media,” The Oregonian
                                                                           123.   8 CFR § 2414(a).
       (December 14, 1999).
                                                                           124.   In Re: Indefinite Detention Cases, CV 98-674 TJH (JWJx),
106.   Id.
                                                                                  Memorandum Opinion, US. C.D.C. (January 27, 2000).
107.   Brune, “INS Housing Children in Jails; Few Places Left for
                                                                           125.   See generally, Kerwin, Acer, and Leopold, “The Detention of
       Unaccompanied Kids,” Newsday (February 4, 2000).
                                                                                  Noncitizens: An Overview of the Law, Its Implementation,
108.   Flores v. Reno, No. 85-4544-RJK (C.D. Cal. Aug. 12, 1996)                  and Legal Strategies,” 1999-2000 Immigration and
       stipulated settlement agreement, setting forth the Juvenile                Nationality Law Handbook, Volume II, Advanced Practice
       Care Agreement).                                                           (American Immigration Lawyers’ Association 1999), at 58-
                                                                                  62; Kerwin, “Detention of Newcomers: Constitutional
109.   Flores v. Reno at ¶ 12A.
                                                                                  Standards and New Legislation,” Part I, 96-11 Immigration
110.   Brune, “INS Housing Children in Jails; Few Places Left for                 Briefings (November 1996).
       Unaccompanied Kids,” Newsday (February 4, 2000); Id.
                                                                           126.   “Immigration Detainees in Jails.”
111.   Hubler, “The Changing Face of Illegal Immigration is a
                                                                           127.   Harr, “The Mariel Cubans: The Forgotten Lifers,” Migration
       Child’s,” Los Angeles Times (January 31, 2000).
                                                                                  World, Vol XXVII, No. 5 (1999).
112.   Statistic provided by Phyllis Coven, senior INS official, at INS
                                                                           128.   Burgenthal, “International Human Rights in a Nutshell,”
       - NGO meeting on February 17, 2000 in Washington, D.C.
                                                                                  (1988) at 33.
       [hereinafter “Coven Statement”].
                                                                           129.   “Lost in the Labyrinth” at 70.

                REPORT               4      ❘     THE NEEDLESS DETENTION OF IMMIGRANTS                                                          37
     130.   I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).                 143.   INA § 235(c).

     131.   A v. Australia, CCPR/C/59/D/560/1993 (30 April 1997).           144.   INA § 240(b)(4)(B).

     132.   In adopting the ICCPR, the United States made reservations      145.   Frenzen, “National Security and Procedural Fairness: Secret
            that U.S. law would control in the event of any conflict with          Evidence and the Immigration Laws,” 76 Interpreter
            Article 9. However, it is unclear whether these reservations           Releases 1677 (November 22, 1999).
            are internationally valid in accordance with the law of
                                                                            146.   INA § 501, et seq.
            treaties. See “Vienna Convention” at ¶¶ 17, 18 (“A State is
            obliged to refrain from acts which would defeat the object      147.   American Arab Anti-Discrimination Committee Press
            and purpose of the treaty.”)                                           Release, “Congressional Hearing Is Significant Step Forward
                                                                                   in Battle to End Secret Evidence” (February 10, 2000).
     133.   Kerwin, “Detention of Newcomers: Constitutional Standards
            and New Legislation,” Part I, 96-11 Immigration Briefings       148.   Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999).
            (November 1996) at 14-15.
                                                                            149.   Press, “The Strange Case of Hany K.,” American Prospect
     134.   Matter of Adeniji, Int Dec. 3417 (BIA Nov. 3, 1999).                   (December 20, 1999).

     135.   INA § 236(c)(1).                                                150.   Id.

     136.   See, eg., Aguilar v. Lewis, 50 F.Supp. 2d. 539 (E.D. Va.        151.   Ramirez, “Freedom Begins with Elation and Prayer,” New
            1999); Velasquez v. Reno, 37 F.Supp. 2d 663 (D.N.J. 1999);             York Times (November 30, 1999).
            Alwaday v. Beebe, 43 F.Supp. 2d 1130 (D. Or. 1999); Kuhali
                                                                            152.   Aschoff, “Ordered Deported, Men Jailed as Threats to
            v. Ingham, No. 1:99-CV-00156A (W.D.N.Y. July 2, 1999).
                                                                                   National Security Cannot Find a Country That Will Have
     137.   Memorandum from Michael A. Pearson, Executive Associate                Them,” St. Petersburg Times (June 7, 1999).
            Commissioner for Field Operations, to INS Regional
                                                                            153.   Aschoff, “Two Years in the Dark,” St. Petersburg Times
            Directors, “Field Guidelines for Applying Revised
                                                                                   (May 17, 1999).
            Interpretation of Mandatory Custody Provision,” HQOPS
            (DDP) 50/10 (July 12, 1999).                                    154.   Merzer, “Judge: Secret evidence in jailing ‘tainted’,” Miami
                                                                                   Herald (June 1, 2000).
     138.   Department of Justice, Bureau of Justice Statistics,
            “Compendium of Federal Justice Statistics, 1998” (May           155.   “Judge denies ‘secret info’ detainment of Palestinian,”
            2000) at 45.                                                           Associated Press (August 15, 2000).

     139.   Id.                                                             156.   Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999); Najjar
                                                                                   v. Reno, 97 F. Supp.2d 1329 (S.D. Fla. 2000).
     140.   Id. at 35.
                                                                            157.   Secret Evidence Repeal Act of 1999, HR. 2121 (introduced
     141.   Jorgensen v. INS, No. 99-70073 (S.D. MI. May 4, 1999).
                                                                                   on June 10, 1999).
     142.   INA § 212(a)(3).

      G L O S S A R Y                                         O F                T E R M S

Aggravated Felony. A term that initially appeared in         Code of Federal Regulations (CFR). A compilation of
the Anti-Drug Abuse Act of 1988 (Public Law No.              the rules that govern the agencies of the Federal
100-690). At that time, the term included murder             Government. The CFR is divided into 50 titles that
and certain drug and firearm trafficking crimes. Since       represent broad areas subject to federal regulation.
1988, the definition of aggravated felony has been           Title 8 pertains to immigration and nationality and is
expanded numerous times. Today, it encompasses a             composed of all regulations issued by the INS.
wide range of crimes including crimes for which a
                                                             Convention Against Torture (CAT). An international
term of imprisonment of one year or more is imposed.
                                                             agreement protecting a person from return to a
If a one-year sentence is imposed but suspended (i.e.,
                                                             country where he or she is more likely than not to be
no jail time is served by the person who commits the
                                                             tortured. The Convention is formally known as the
crime), such crime is still considered an aggravated
                                                             United Nations Convention Against Torture and Other
felony. The definition appears at INA §101(a)(43).
                                                             Cruel, Inhumane, or Degrading Treatment or
Anti-Terrorism and Effective Death Penalty Act               Punishment. There is no filing deadline for protection
(AEDPA) (Public Law No. 104-132). Enacted in 1996,           and no one is barred from seeking protection under
a law that broadened crimes leading to removal, elim-        the CAT. Protection under the CAT does not confer
inated relief from removal for many crimes, and              the right to lawful permanent residence or the right to
attempted to limit judicial review. It served as a           immigrate family members to the United States. In
precursor to the 1996 Illegal Immigration Reform and         addition, a person granted protection under the CAT
Immigrant Responsibility Act (IIRIRA), which supple-         may be removed to a country where he or she will not
mented many of its provisions and replaced others.           face torture.
Asylee. A person who has been granted asylum in              Credible Fear. The standard an asylum-seeker subject
the United States because he or she is unable or             to expedited removal proceedings must meet in order
unwilling to return to his or her country of origin due      to avoid immediate removal from the United States.
to past persecution or a well-founded fear of future         The credibility of one’s statements and other facts
persecution.                                                 known to the immigration officer must demonstrate a
                                                             ‘significant possibility’ that the person could establish
Asylum. A form of protection available to persons
                                                             eligibility for asylum. Persons who are determined to
physically present in the United States or at a port-of-
                                                             have a credible fear of persecution will not be
entry seeking admission to the United States, who
                                                             removed in the expedited removal process and can
fear returning to their native country due to past
                                                             seek political asylum in the United States.
persecution or a well-founded fear of future perse-
cution. The persecution must be based on one of five         Deferral of Removal. The form of relief granted to
grounds: race, religion, nationality, membership in a        persons who receive protection under the Convention
particular social group or political opinion. Except in      Against Torture (CAT). Certain persons who would
limited circumstances, an application for asylum must        likely face torture but who are ineligible for other
be filed within one year of an individual’s arrival in the   types of relief from removal, may be granted deferral
United States. Asylum status is granted in the United        of removal under the CAT. Deferral of removal may
States, after an application for asylum is approved          be terminated if the individual is no longer likely to be
under INA §208(a). One year after being granted              tortured in the country of removal. In addition,
political asylum, an asylee may apply for permanent          persons granted deferral may be subject to INS
residence in the United States.                              detention.
Board of Immigration Appeals (BIA). The adminis-             Executive Office for Immigration Review (EOIR). The
trative appeals court for decisions made by                  division within the Department of Justice responsible
Immigration Judges, INS District Directors and other         for interpreting and administering federal immigration
immigration officials.                                       laws and regulations. EOIR accomplishes its tasks

            REPORT            4     ❘   THE NEEDLESS DETENTION OF IMMIGRANTS                                             39
     through immigration court proceedings, appellate             Indefinite Detention. An undetermined period of INS
     reviews, and administrative hearings of individual           confinement faced by immigrants who are removable,
     cases. The EOIR has three main divisions: the Board          but whose countries of origin will not accept them.
     of Immigration Appeals, the Office of the Chief              Generally, the INS must remove an immigrant with a
     Immigration Judge, and the Office of the Chief               final order of removal within 90 days of the date of
     Administrative Hearing Officer.                              issuance of that order. Natives from countries with
                                                                  whom the U.S. government does not have diplomatic
     Expedited Removal. A process that provides for the
                                                                  relations or that will not cooperate in the repatriation
     immediate removal from the United States of indi-
                                                                  of their nationals, such as Cuba, Vietnam, China,
     viduals who arrive without valid travel documents,
                                                                  Cambodia, Laos, Iran, Iraq and Somalia, cannot be
     such as a passport and visa. Persons removed in
                                                                  removed. In addition, immigrants who are unable to
     expedited removal proceedings are barred from re-
                                                                  obtain travel documents cannot be removed. In such
     entering the United States for a minimum of five
                                                                  cases, prior to the conclusion of the 90-day period, a
     years. In order to avoid immediate removal, asylum-
                                                                  review of the individual’s continued detention must be
     seekers who arrive without proper entry documents
                                                                  conducted. This review is conducted by an INS
     must demonstrate a credible fear of returning to their
                                                                  District Director who has discretion to grant or deny
     native country.
                                                                  release. If not released from detention after a review,
     Humanitarian Parole. A form of admission, granted            indefinite detainees face prolonged detention for
     by the Attorney General, for persons who are                 uncertain periods of time. Lawful permanent residents
     otherwise ineligible to enter the United States.             of the United States may be subject to indefinite
     Humanitarian parole is only granted in cases involving       detention.
     urgent and compelling factors, such as medical emer-
                                                                  Lawful Permanent Resident (LPR). A lawful
     gencies, or in cases involving significant public benefit.
                                                                  permanent resident is a foreign-born resident of the
     This status is temporary and only issued to coincide
                                                                  United States, who has the right to live and work in
     with the duration of the relevant emergency or
                                                                  the United States. Lawful permanent residents do not
     humanitarian situation. There is a maximum time limit
                                                                  have the right to vote and are subject to deportation if
     of one year for a humanitarian parole. Under U.S.
                                                                  they are convicted of certain crimes. Lawful
     immigration law, the term “parole” carries no criminal
                                                                  permanent residents are ‘green card’ holders.
                                                                  Mandatory Detention. The detention of certain cate-
     Illegal Immigration Reform and Immigrant
                                                                  gories of immigrants without the possibility of release,
     Responsibility Act (IIRIRA). (Public Law No. 104-
                                                                  as mandated by the Anti-Terrorism and Effective
     208). Enacted on September 30, 1996, a law that
                                                                  Death Penalty Act (AEDPA) and the Illegal
     dramatically altered U.S. immigration law. It created
                                                                  Immigration Reform and Immigrant Responsibility Act
     several new grounds of inadmissibility, restricted the
                                                                  (IIRIRA). Persons subject to mandatory detention
     ability to apply for asylum, changed inspections and
                                                                  include those subject to expedited removal
     removal processes, and altered provisions relating to
                                                                  proceedings (including asylum seekers, until they
     public benefits, document fraud and the detention of
                                                                  establish that they have a “credible fear” of perse-
                                                                  cution in their home country); persons who have final
     Immigration and Nationality Act (INA). The statute           orders of removal for (normally) 90 days; and many
     encompassing U.S. immigration law. The INA is found          immigrants convicted of crimes. However, immigrants
     in the United States Code (U.S.C.), a complete               convicted of crimes who completed their criminal
     collection of federal laws. Title 8 of the U.S.C. pertains   sentences prior to October 9, 1998 may be exempted
     to immigration and nationality.                              from mandatory detention.
     Inadmissible. The legal term applied to a person who         Non-immigrant. A person holding a visa limited for a
     is not eligible to enter the United States or adjust         certain period of time and activity. Non- immigrant
     status to lawful permanent residence in the United           visas are available for tourism, business, temporary
     States. A person who is inadmissible to the United           work, religious work, farm work, educational and
     States may not be issued an immigrant visa. Common           other purposes. While the non-immigrant is residing
     inadmissibility grounds include health-related               in the United States, his or her activity must be
     problems, previous criminal activity, the possibility of     consistent with the provisions of his or her visa.
     becoming a public charge, fraud, prior removal from
     the United States, or previous unlawful presence in
     the United States.

Refugee. A person who has fled his or her country of          Visa. The official document issued by the U.S.
origin because of past persecution or a well-founded          Department of State at a U.S. Embassy or Consulate
fear of future persecution based on one of five               abroad that grants an individual legal permission to
grounds: race, religion, nationality, political opinion, or   enter the United States for a particular purpose.
a membership in a particular social group. Refugee
                                                              Voluntary Departure or Return. A form of relief from
status is granted outside the United States. The United
                                                              forcible removal that allows a person in removal
Nations High Commissioner for Refugees (UNHCR)
                                                              proceedings to depart the United States at his or her
interviews refugees outside their country of origin to
                                                              own expense. By agreeing to depart the United
determine eligibility for UNHCR protection. If UNHCR
                                                              States voluntarily, one avoids the consequences of a
decides a refugee cannot be safely returned to his or
                                                              formal order of removal, which normally prohibits a
her home country or cannot remain in a country of
                                                              person from re-entering the United States for ten
first asylum, he or she is referred by the UNHCR for
resettlement in another country. If a refugee is
referred to the United States for resettlement, an INS        Withholding of Removal. A form of relief from
officer interviews the person outside the United States       forcible removal available to persons who prove that it
in order to determine whether he or she may be                is more likely than not that their life or freedom would
granted refugee status under U.S. law. If granted             be threatened in their country of origin, as a result of
refugee status, the refugee may enter the United              their race, religion, nationality, membership in a
States. One year after entry into the United States, a        particular social group or political opinion. (INA §
refugee can apply for lawful permanent residence.             241(b)(3)). Like asylum, persons ineligible for with-
                                                              holding of removal include certain criminals, terrorists,
Removal Proceedings. The process during which an
                                                              and persecutors. Withholding of removal differs from
Immigration Judge determines whether a non-citizen
                                                              asylum in several respects. First, asylum is a discre-
may remain in the United States or must be removed.
                                                              tionary form of protection, but the U.S. government is
Prior to the passage of the Illegal Immigration Reform
                                                              bound to offer withholding of removal in accordance
and Immigrant Responsibility Act of 1996, these
                                                              with Article 33 of the United Nations 1951
proceedings were referred to as deportation or
                                                              Convention relating to the Status of Refugees.
exclusion proceedings.
                                                              Second, persons who seek asylum must make an
United Nations Convention on the Rights of the                application within one year of arrival in the United
Child (CRC). Adopted by the United Nations General            States, whereas there is no such deadline for with-
Assembly on November 20, 1989, an international               holding of removal. Third, only persons in removal
human rights treaty that recognizes the vulnerability         proceedings may seek withholding of removal.
of children and their need for special care and               Fourth, unlike asylum, withholding of removal does
protection. The Convention identifies the following           not serve as a step to lawful permanent residence nor
rights as fundamental to children: education, health          does it prevent removal to a country where a person is
services, and legal assistance; protection from abuse,        not at-risk. Finally, withholding of removal does not
neglect, and labor that threatens health or education;        extend protection to derivative family members.
and special protections for children who are refugees,
abandoned, or without family. With 191 signatories,
the CRC is one of the most widely ratified human
rights treaties. The United States and Somalia are the
only United Nations members who have not ratified
the convention.
United Nations Universal Declaration of Human
Rights. Adopted by the United Nations General
Assembly on December 10, 1948, a declaration that
defines equal rights as the foundation of freedom,
justice, and peace. The Declaration sets forth multiple
rights and freedoms, to which all persons, regardless
of race, sex, language, religion, political opinion or
nationality, are entitled. Such rights include the right
to: leave any country; to return to one’s own country;
to seek asylum in other countries; to remain free from
cruel, inhuman or degrading treatment, arbitrary
arrest, detention, and exile.

            REPORT            4     ❘    THE NEEDLESS DETENTION OF IMMIGRANTS                                             41
      C L I N I C ’ s                      B O A R D                 O F          D I R E C T O R S

     Most Reverend Thomas G. Wenski                              Most Reverend George V. Murry, S.J.
     Auxiliary Bishop of Miami                                   Bishop of St. Thomas
                                                                 Most Reverend Armando X. Ochoa
     Most Reverend Nicholas DiMarzio                             Bishop of El Paso
     Bishop of Camden
                                                                 Mr. Mark Franken
     Reverend Monsignor William P. Fay                           Executive Director-USCC/MRS
     General Secretary-Elect/USCC
                                                                 Most Reverend John H. Ricard, S.S.J.
     Mr. Edward L. Quinn                                         Bishop of Pensacola-Tallahassee
     Senior Vice President, The Enterprise Foundation
                                                                 Sr. RayMonda DuVall
     Most Reverend Stephen E. Blaire                             Executive Director-Catholic Charities, Diocese of San Diego
     Bishop of Stockton
                                                                 Mrs. Jane Golden Belford, Esq.
     Most Reverend Emilio Allué
                                                                 Mr. Austin T. Fragomen
     Auxiliary Bishop of Boston
                                                                 Fragomen, Del Rey & Bernsen, P.C
     Most Reverend Michael P. Driscoll
     Bishop of Boise

      C L I N I C ’ s                      C O R P O R A T E                              O F F I C E R S

     Most Reverend Thomas G. Wenski                              Most Reverend George V. Murry, S.J.
     Auxiliary Bishop of Miami                                   Bishop of St. Thomas
     President                                                   Treasurer

     Most Reverend Stephen E. Blaire                             Donald M. Kerwin
     Bishop of Stockton                                          Chief Operating Officer-CLINIC
     Vice President                                              Secretary

                                           To order the report, please contact:
                                            Catholic Legal Immigration Network, Inc.
                                                       McCormick Pavilion
                                                   415 Michigan Avenue, NE
                                                     Washington, DC 20017
                                         Ph: (202) 635-2556;

                                                   Cost of the report: $10.00


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